Rajasthan High Court
Villagers Of Village Budhadeet ... vs State Of Raj And Ors on 23 February, 2022
Bench: Akil Kureshi, Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Writ Petition (PIL) No. 1037/2016
Villagers Of Village Budhadeet, Gram Panchayat Sultanpur,
District Kota through its residents:
1. Mahaveer Prasad Meena S/o Shri Madholal Meena, aged about
62 years, Ward No.7, Hattai ka Mohalla(Agriculturist), Village
Budhadeet, Gram Panchayat Sultanpur, Tehsil Digod, District
Kota, (Rajasthan)
2. Mangilal s/o Shri Ram Gopal, aged about 70 years,
(Agriculturist), Village Budhadeet, Gram Panchayat Sultanpur,
Tehsil Digod, District Kota, (Rajasthan)
3. Ram Gopal Meena S/o Shri Bherulal, aged about 63 years,
(Agriculturist) Village Budhadeet, Ward No.11, Khute Ka Pada,
Gram Panchayat Sultanpur, Tehsil Digod, District Kota,
(Rajasthan)
----Petitioners
Versus
1. The State of Rajasthan through the Chief Secretary,
Government of Rajasthan, Secretariat, Jaipur.
2. The District Collector, Kota, District Kota
3. The Sarpanch, Gram Panchayat, Budhadeet, District Kota
4-a. Dhanraj Vaishnav (Bairagi) S/o Shri Ram Prashad, aged
about 41 years, R/o Village Budhadeet, Gram Panchayat
Budhadeet, Tehsil Digod, District Kota, Rajasthan.
4-b. Pawan Kumar S/o Shri Nawal Kishore, aged about 15 years,
Minor through its Natural Guardian Uncle Next Kastoor Chand
S/o Shri Badrilal Kumhar, r/o Budhadeet, Gram Panchayat
Sultanpur, Tehsil Digod, District Kota (Raj.)
5. Dhanna Lal Bairagi S/o Shri Laxmi Nayarr aged about 55
years, r/o Village Budhadeet, gram panchayat Sultanpur, tehsil
Digod, District Kota.
6. Ramswaroop S/o shri Moolilal, aged about 45 years, r/o
village Budhadeet, Gram Panchayat Sultanpur, Tehsil Digod,
District Kota (Raj.)
7. Ramesh Chand s/o Shri Molilal aged about 50 years, r/o
village Budhadeet, Gram Panchayat Sultanpur, Tehsil Digod,
District Kota (Raj.)
8. Radhey Shyam S/o Shri Birdhilal, aged about 52 years, r/o
village Budhadeet, Gram Panchayat Sultanpur, Tehsil Digod,
District Kota (Raj.)
9. Bhairu lal s/o shri Bajrang Lal Mali, aged about 56 years, r/o
village Budhadeet, Gram Panchayat Sultanpur Tehsil Digod,
District Kota (Raj.)
10. Dharamraj S/o Shri Prabhulal, aged about 32 years, r/o
village Budhadeet, Gram Panchayat Sultanpur, Tehsil Digod,
District 7. Kota (Raj.)
11. Ghanshyam S/o shri Bajranglal Agarwal aged about 60
years, r/o Village Budhadeet, Gram Panchayat Sultanpur, Tehsil
Digod, District 8. Kota Raj.
12. Kedar Lal S/o Shri Badri Lal, r/o Village Budhadeet, Gram
Panchayat Sultanpur, Tehsil Digod, District Kota. Raj.
(Downloaded on 24/02/2022 at 09:16:10 PM)
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13. Chouthmal s/o Shri Surajmal Meena, r/o Village Budhadeet,
Gram Panchayat Sultanpur, Tehsil Digod, District Kota (Raj.)
----Respondents
For Petitioner(s) : Mr. Ravi Kumar Kasliwal
For Respondent(s) : Mr. Anil Mehta, AAG with
Ms. Archana through VC
Mr. Saransh Saini
Mr. Nitesh Pareek for
Mr. Ajay kumar Bajpai
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
Reserved on February 11th, 2022
Pronounced on February 23rd, 2022
By the Court: (Per Hon. Bansal, J)
1. By way of filing present public interest litigation, petitioners
on behalf of villagers of Village Budhadeet, Gram Panchayat,
Sultanpur, District kota have prayed to direct respondents to
remove encroachments/illegal possession from land of Tejaji Mela
bearing Khasra Nos.95, 96 & 97 (new Khasra Nos.44, 146 & 147)
of village Budhadeet, Kota.
2. The petitioners have come up with a case that land in
question is reserved for village Mela of Tejaji and for various public
uses of Ramlila, circus weekly haat, exhibitions etc. for the
villagers. However, in the year 1988, the then Sarpanch of village
Budhadeet allotted land in question to his near and dears and
issued pattas for shops. It has been averred that Panchayat Samiti
challenged such allotments made on the land of common use for
villagers and these allotments were cancelled by the District
Collector, Kota vide order dated 21.01.1991 and directions were
issued to dispossess such allottees, declaring them as trespassers
(3 of 18) [CW-1037/2016]
over the land of mela ground. It has further been averred that
allottees approached to the High Court by way of filing separate
writ petitions, which are dismissed by common order dated
30.09.1996. It has been averred that these trespassers are still
having their illegal possession over mela ground and have not
been dispossessed by the respondents, despite giving several
representations by the villagers, hence this petition. The counsel
for petitioners has placed reliance upon the judgment of Hon'ble
Supreme Court in the case of Jagpal Singh Vs. State of Punjab
& Ors. Reported in [2011 (11) SCC 396].
3. The notices were issued to respondents and during the
course of hearing of the present petition, this Court passed orders
dated 18.10.2016 and then 07.11.2016 asking the respondent
State Authorities to remove the encroachment and implement to
the previous order of High Court dated 30.09.1996, affirming the
orders of District Collector, Kota for cancellation of pattas, issued
by the Sarpanch over the land left for common use of mela
ground.
4. The respondent Nos.1 & 2 State authorities have filed replies
twice and four additional affidavits through the then Collector,
Kota and the Sub-Divisional Officer, District Kota. It has been
contended therein that no land of khasra Nos.95, 96 and 97 or
their new khasra number is reserved and recorded in the revenue
record for Tejaji Mela, however the Tejaji Mela is organized over
the part of land of Khasra No.44 and majorly on land of Khasra
No.146 every year in the month of September for three days only
and Haat Market is also organized thereupon weekly. The
respondent State Authorities have submitted that in fact land of
old Khasra No.95 measuring 4.01 hectare, is recorded as "Gair
(4 of 18) [CW-1037/2016]
Mumkin Ground", which was renumbered as Khasra No.44 and out
of which, an area of 2.59 hectare land is left open and the same is
available for common use by the villagers. Over this land of open
ground, which is recorded as "Gair Mumkin Ground", few
allotments were made by the Sarpanch by way of issuance of
pattas, which were cancelled by the District Collector vide order
dated 21.01.1991. It has been categorically alleged that now the
encroachment made by such persons over this land have been
removed on 25.10.2016. In additional affidavit dated 07.11.2016
filed by the then SDO-Krishna Devi, it is stated that apart from
removing the possession of illegal allottees, other 25-30
encroachments were also removed from the land of Khasra No.44
on 25.10.2016. The compliance report dated 25.10.2016 has been
placed on record with the reply as (Annexure-CR/1). It has been
stated specifically that now over this land of Khasra No.44, there
is no encroachment and the same is available to use by the public
at large.
The land of old khasra No.96 is "Gair Mumkin Rasta" which
as been renumbered as Khasra No.104.
For the land of Khasra No.97, the factual position has been
averred in the manner that this is a big chunk of land of about 24
bigha and 9 biswa which is recorded as "Gair Mumkin Abadi". On
this land of Khasra No.97, roughly about 100-120 construction of
houses are situated since more than thirty years and where
government has provided all the basis facilities of electricity,
waters and road etc. and hundred of families are residing since
years. In the settlement operations of Hindi Samvat 2043-2062
(year 1986-2005), the category of land came to be changed from
"Gair Mumkin Abadi" to "Gair Mumkin Na Kabil Kast" and its area
(5 of 18) [CW-1037/2016]
was also reduced about 11 bighas. The Tehsildar moved an
application under Section 136 of Rajasthan Land Revenue Act to
correct the error in the Revenue Record, which was allowed by the
Sub-Divisional Officer, Digod vide order dated 31.08.2005. The
category of land of Khasra No.97 was restored as "Gair Mumkin
Abadi" and its reduced area of 11 bigha was allowed to be
adjusted/taken from the adjoining land of various Khasra Nos.44,
104, 146 etc. to maintain its measurement of 3.94 hectare. The
copy of order dated 31.08.2005 (Annexure-D/3) has been placed
on record and its operative portion reads as under:-
^^vr% izkFkZuk i= Lohdkj fd;k tkdj vkns"k fn;k tkrk gS fd cw<+knhr ds lkfcd
[k0 u0 97 jdck 24 ch?kk 9 fcLok xS0 eq0 vkcknh ds eqrkfcd gky [k0 u0 146
fe0 jdck 1-90 gS0] 147 jdck 0-89 gS0] 148 jdck 0-32 gS0] 149 jdck 0-24 gS0]
fe. 151 jdck 0-10 gS0] fe0 104 jdck 0-15 gS0] 44 fe0 jdck 0-27 gS0 dqy 3-94
gS0 dks xS0 eq0 vkcknh ntZ fd;s tkus ds vkns"k iznku fd;s tkrs rnkuqlkj jktLo
fjdkWMZ esa vxy njken fd;k tkosA Qkbuy fMØh tkjh gksA"
It has also been averred that a survey was conducted by the
Panchayati Raj Department in the year 1990 and wherein also
over the land of Khasra No.97 about 37 families of BPL
Cardholders, 30 families of beneficiary of BPL, 46 persons having
pattas from the Gram Panchayat and several other persons of
reserved categories were found in possession. It has been
contended that over this Khasra number, one Masjid and police
headquarter are also situated and this is a neither pasture land
nor Siwai Chak land rather it is a land of "Gair Mumkin Abadi",
which is being used for residential and other purposes since years
together.
5. Thus, in sum & substance the stand of the respondent State
authorities is that the land of khasra No.97 is land of "Gair
(6 of 18) [CW-1037/2016]
Mumkin Abadi" and whereupon several type of constructions are
there, wherein thousands of families are residing since long. There
old constructions may not be dispossessed by treating the land of
Khasra No.97 for use of Tejaji Mela. The land of Khasra No.44
measuring 2.59 hectare in the nature of "Gair Mumkin Ground"
(bearing part of old Khasra No.95) and land of Khasra No.146 is
available in village for the purpose of Tejaji Mela and other
activities by the villagers, however the Tejaji Mela is mainly
organised on the land of Khasra No.146. The encroachment, as far
as on the land of Khasra No.44 is concerned, has already been
removed on 25.10.2016 and since thereafter no illegal
possession/encroachment exists over the land of Khasra No.44.
Thus, sufficient open land free from any kind of encroachment is
available in village and there is no obstruction in village for
organizing the Tejaji Mela and Haat market etc.
6. The respondent No.3 Gram Panchayat has also filed its
separate reply and accepted that the allotments for shops were
given by the then Sarpanch of Gram Panchayat to the ten persons
over the land of Khasra No.95 (New Khasra No.44) which is
recorded as "Gair Mumkin Ground" in the Revenue Record and
such allotments have been cancelled by the Collector, Kota vide
order dated 21.01.1991. The order has also been affirmed by the
High Court, thus, Gram Panchayat has submitted reply that to
protect the land of common use by villagers, from any
enchroachment, appropriate orders in the present petition may be
passed.
7. Since the respondent-State authorities submitted that after
passing order dated 18.10.2016 by this Court all enchroachment
from the land of Mela ground have been removed during pendency
(7 of 18) [CW-1037/2016]
of this petition and the compliance report dated 25.10.2016 has
been filed, but the petitioners have disputed the aforesaid
compliance, therefore, in order to resolve the factual controversy,
involved in the present petition, the High Court vide order dated
02.01.2017, appointed Mr. P.P. Mathur a practicing lawyer, as a
Court Commissioner to inspect and prepare a Panchnama of the
land of Khasra No.95,96 and 97 of village Budhadeet, District
Kota. The Court Commissioner, in pursuance thereof inspected the
site of village Budhadeet and submitted his report dated
07.03.2017. The report of Court Commissioner with revenue map,
site maps, photographs and CD of photos and video clips is
available on record. The Court Commissioner, in his report has
noted that many encroachments (as determined by Government
authorities) have been removed from the site. The demolished
kutcha houses are visible. No house has been spared on this part.
The Court Commissioner also found that roughly about 100-120
constructed houses are situated over the land area of Khasra
No.97, however he is not in a position to determine the exact
interpretation of the related judgments which have the legal
import upon the correct site of Khasra No.97 and 95 in relation to
new Khasra No.44. As per sketched map with red ink appended
with the Commissioner report as Annexure-B, there seems some
overlapping boundaries of Khasara No. 97 and 95. However, by
the site map which is annexed as Annexure-C with the report of
Court Commissioner and duly signed by the Tehsildar and though
denied by the petitioners, it stands clear that the possession of ten
persons located over the land of Khasra No.44 have been removed
and one pakka house of Bhairulal Mali is situated in land of Khasra
No.146. It has been mentioned in the report that Bhairulal had
(8 of 18) [CW-1037/2016]
obtained permanent injunction order dated 18.09.2007 from the
Court of Civil Judge (Junior Division) Digod, therefore his house
was not demolished. In the site map of report of Court
Commissioner, the position of Tejaji Mandir and several other
public centres like, Patwar Grah, Kissan Seva Kendra, Ayurved
Hospital, Atal Seva Kendra and Bank etc. are shown to be situated
over the land area of Khasra No.44 and remaining part is shown
as laying vacant. The land of khasra No.146, 147, 104, 148, 151
are also visible in the site map.
8. Apart from the aforesaid factual matrix, during the course of
pendency of the present petition, three separate applications
under Order 1 Rule 10 CPC were also filed.
One application dated 21.12.2016 was filed by Dhanraj
Vaishnava, who alleged himself to be one of allottees by Sarpanch,
whose allotment was cancelled by the Collector vide order dated
21.01.1991 and upheld by the High Court vide order dated
30.09.1996. He has also contended that his possession had been
removed by the State Authorities and he is claiming for his
rehabilitation by the State being a welfare State. This Court vide
order dated 22.01.2018 allowed him to be added as party
respondent and he is respondent No.4-a herein.
Another application dated 25.10.2016 has been filed by ten
persons, who were also allowed to be impleaded as party
respondent vide order dated 22.01.2018 and they are respondents
No.4-b to 13 herein. These persons have alleged that they are
having possession over the land of Khasra No.97, which is a land
of "Gair Mumkin Abadi" and have placed reliance upon the order
dated 31.08.2005 passed by the Sub-Divisional Officer, Digod.
They submit that this Khasra was renumbered and the new Khasra
(9 of 18) [CW-1037/2016]
No. 147, 148, 149, 1472/151 1473/44 1474/104 and 1475/146
total measuring 3.87 hectare are recorded as land of "Gair
Mumkin Abadi" in the revenue record of Jamabandi for Samvat
2067-2070. The copy of revenue record of Jamabandi has been
placed on record. These persons submitted that their possession
are not on the land of mela ground but they are having possession
over the land of "Gair Mumkin Abadi" and in their favour Gram
Panchayat issued pattas following the procedure as prescribed
under Rule 266 of the Rajasthan Panchayati Raj Rules. Thus, their
possession may not be allowed to be disturbed by the official
respondent-athorities.
Third application dated 15.07.2017 has been filed by nine
persons namely, Prahlad Gurjar, Smt. Shama Bai, Kedar Lal
Meena, Kanhaiya Lal, Rajendra Kumar, Lokesh Kumar Meena,
Ramkishan, Shivphool and Surya. They have contended that they
are not in possession over the land of mela ground and their
possession is situated over the land of Khasra No.101, 102 and
some part of Khasra No.297 and the Gram Panchayat have issued
allotment letters in their favour under Rule 266 of the Rajasthan
Panchayati Raj Rule. However, the Gram Panchayat has issued
notices to these persons except Ramkishan dated 29.12.2016 and
then on 13.07.2017 to remove their possession due to orders
passed in the present writ petition. They submit that the Civil
Court has passed judgment dated 20.09.2007 in favour of
Ramkishan and other persons are also having possession over the
land of "Gair Mumkin Abadi", no possession over the land of mela
ground is their as such they should not be dispossessed. This
application was also allowed vide order dated 22.05.2018,
although no amended cause title has been filed thereafter.
(10 of 18) [CW-1037/2016]
9. It has also transpired from the record that initially four
persons filed the present public interest petition but petitioner
No.4-Uttam Chand Meena passed away during the pendency of
the petitions, hence his name was allowed to be deleted.
10. Heard learned counsel for respective parties and perused the
material available on record, including the report submitted by the
Court Commissioner.
11. The petitioners are claiming that land of Khasra Nos.95, 96
and 97 of village Budhadeet, Gram Panchayat Sultanpur, District
Kota is reserved for use of Tejaji Mela and all kinds of
encroachment/illegal possession therefrom be removed and
further the land of Tejaji Mela be protected from any kind of
encroachment. The petitioners have not detailed out any
description and exact measurement of the land, which is said to
be used for Tejaji Mela and only have placed reliance upon the
order dated 21.01.1991 passed by the District Collector, Kota as
also upon the previous order dated 30.09.1996 passed by the
High Court. On the basis of there previous orders. Petitioners have
contended that it was declared by the High Court that land in
question i.e. Khasra Nos.95, 96 and 97 are land of Mela Ground.
Whereas as a matter of fact a perusal of order dated 21.01.1991
passed by the District Collector, Kota goes to show that the issue
was raised before the District Collector about issuance of illegal
pattas for the shops by the then Sarpanch on the land of Khasra
Nos.95 and 97, which are said to be land of Mela ground. The
Collector called the site inspection report through Panchayat
Extension Officer. The site report dated 12.09.1990 with map was
produced and after inquiry it was found that before issuance of
pattas for the shops, the procedure of law as prescribed under the
(11 of 18) [CW-1037/2016]
rule 258(1) and 260 of the Rajasthan Panchayati Act, 1953 was
not followed: no public notice issued: no objections invited: no
inspection of site by the three "Panches" was made and since the
land is used for public purposes of holding Tejaji Mela and Haat
market, the same was not salable; thus, all such pattas, which
were issued by the Sarpanch of Gram Panchayat, Budhadeet vide
order dated 02.10.1988 were cancelled by the District Collector
and it was directed that such illegal allottees be dispossessed from
the disputed land. Further a perusal of previous order dated
13.09.1996 passed by the High Court goes to show that 9
allottees assailed the order dated 21.01.1991, cancellation of their
pattas for shops and the High Court dismissed their writ petitions
by upholding the cancellation of their pattas by the District
Collector. In both the orders, there is no such declaration and
determination regarding the nature and use land of khasra
Nos.95, 96 and 97 of the Village Budhadeet that these lands are
absolutely reserved only for the purpose of organization of the
Tejaji Mela and Haat market. Thus, the contention of petitioners
that lands in question of Khasra Nos.95, 96 and 97 have been
declared to be kept reserved for the purpose of Tejaji Mela and
Haat market of the village, does not find support with the orders
dated 21.01.1991 and 30.09.1996. Except placing reliance upon
these orders, the petitioners have not produced any other material
to show that such lands in question are reserved only for Tejaji
Mela and Haat market etc.
12 However, it is clear from the record that the respondent-
State authorities have not disputed the organization of Tejaji Mela
and Haat market in the Village, Budhadeet and it has been alleged
that Tejaji mela is organized every year in the month of
(12 of 18) [CW-1037/2016]
September for three days only and haat market is organized
weekly. The actual dispute is about the area and place of village,
where the Tejaji mela and Haat market is organized. According to
respondents previously the Veer Tejaji Mela was used to be
organized partially on the land of Khasra Nos.44 and 146 but later
on because on the land of Khasra No.44 some encroachment
cropped up, therefore the mela is now organized on the land of
Khasra No.146. It has been clarified by the State authorities that
the encroachment over land of Khasra No.44, made by persons to
whom pattas for shops were issued by the Sarpanch, have been
removed on 25.10.2016 and since thereafter land of Khasra No.44
(area 2.39 hectare) and land of Khasra No.146 (1.90 hectare) is
available in village freed from all kinds of encroachment and may
be used for the purpose of Tajaji Mela and Haat market of the
village. As per the pleadings of State Authorities, it becomes clear
that Khasra No.95, total measuring 4.01 hectare was recorded as
"Gair Mumkin Ground" and it was converted in new Khasra No.44
and area of 2.59 hectare is available as "Gair Mumkin Ground" for
public common use. As per site map duly signed by the Tehsildar
Digod, which is appended as Annexure-C with the report of the
Court Commissioner dated 07.03.2017, over the land of Khasra
No.44, the Tejaji Mela and several other public centres like, Patwar
Grah, Kissan Seva Kendra, Ayurved Hospital, Primary Health
Centre, Atal Seva Kendra and Bank etc. are shown to be located.
Thereupon, the remaining part of khasra Number 44 is shown as
laying vacant because the encroachment/illegal possession of
illegal patta holders and other encroachment over the land of
Khasra No.44 have been removed. In this regard, the compliance
report dated 25.10.2016 placed on record by the State authorities
(13 of 18) [CW-1037/2016]
stands verified by the report of Court Commissioner dated
07.03.2017. The Court Commissioner clearly mentioned that many
encroachments (as determined by Government authorities) have
been removed from the site. The demolished kutcha houses are
visible. No house has been spared on this part. In this manner, the
position of revenue record and the existing position at site for the
land of Khasra No.95 is available on record. The petitioners also
do not dispute the removal of encroachment/illegal possession
from the land of Khasra No.95 (new Khasra No.44). Thus, the
fundamental grievance of the petitioners for seeking removal of
encroachment/illegal possession of those persons to whom the
pattas were issued by the Sarpanch on the land of "Gair Mumkin
Ground" and their pattas were cancelled by the Collector on
21.01.1991, which was upheld by the High Court vide order dated
30.09.1996, no more survive since such encroachment/illegal
possession have been removed.
13. As far as land of Khasra No.96 is concerned, the same is
recorded as "Gair Mumkin Rasta", which has been renumbered as
Khasra No.104. The petitioners have not raised any issue about
any kind of encroachment over the land of "Gair Mumkin Rasta".
14. As for as the dispute about the removal of constructions exist
on the land of Khasra No.97 is concerned, as per report of Court
Commissioner dated 07.03.2017, roughly 100-120 constructed
houses are situated in the area of Khasra No.97. The petitioners,
during the course of hearing of this petition, have raised additional
grievance that all the constructions located on the land of Khasra
No.97 are also encroachment and the same be too ordered to be
removed, in compliance of the previous order of High Court dated.
30.09.1996. Such additional grievance is apparently in expansion
(14 of 18) [CW-1037/2016]
of the initial basic pleadings of this petition where the petitioners
prayer only to remove the encroachment of illegal pattas holders,
which had been cancelled by the Collector vide order dated
21.01.1991. As have already observed hereinabove that in the
order dated 30.09.1996, there is no such declaration made by the
High Court about land of Khasra No.97 being reserved for the
Tejaji Mela and Haat Market. However, in order to examine the
contention of petitioners, we have considered the category and
nature of land of khasra No.97. As per Revenue Record, the land
of Khasra No.97 is said to be recorded as "Gair Mumkin Abadi". It
seems that total area of Khasra No.97 was 24 bigha and 9 biswa,
but during settlement operations, its area came to be reduced and
the category came to be recorded as "Gair Mumkin Na Kabil Kast".
The Tehsildar initiated proceedings under Section 136 of Land
Revenue Act, 1956 for correction and the Sub-Divisional Officer,
passed order dated 31.08.2005, which is available on record.
According to order dated 31.08.2005, the category and nature of
land of Khasra No.97 was restored as "Gair Mumkin Abadi" and its
shortfall area was also ordered to be adjusted from the other
adjoining lands. The order dated 31.08.2005 as quoted
hereinabove, attains finality as none of the parties have produced
any contrary or subsequent order thereto.
15. The High Court, vide order dated 07.03.2017 and
06.03.2018 passed during pendency of the present petition, asked
the State authorities to examine the report of Court Commissioner
and clarified the position about 100-120 constructions said to be
situated on the land of Khasra No.97. In pursuance thereof, the
then Collector, Kota, Dr. Ravi Kumar Surpur, submitted his
additional affidavit dated 17.04.2017 contending that the land of
(15 of 18) [CW-1037/2016]
Khasra No.97 is "Gair Mumkin Abadi" situated towards eastern
side of the road connecting Budhadeet to Takarwara and
whereupon the residents of Budhadeet have constructed kutcha,
Pakka double story houses, shops etc. Other constructions of
religious places, polices station houses are also situated
thereupon. It has been stated that according to Rule 157 (1) of
Rajasthan Panchayati Raj, Rule 1996, old constructions may be
regularised by the Gram Panchayat and according to Rule 157 (2),
homeless families, who were in possession till year 2003 by way of
kutcha construction are entitled for regularization up to the area
of 300 Sq.Yrds. It has also been stated that part of Khasra No.44
is also comprised by the old Khasra No.97.
Another additional affidavit has been filed by Ms. Taramati
Vaishnava, the then Sub-Divisional Officer, Digod, District Kota
stating therein that the actual position of Khasra No.97 was got
inspected through Panchayat Extension Officer and by the
Tehsildar. Both the site reports of year 1990 have been placed on
record and according to such reports, Khasara No.97 is densly
populated where the families including BPL Cardholders,
beneficiary of BPL and other persons of reserved class category
are residing for last more than 30 years. It has been stated that
the Gram Panchayat had issued pattas in favour of 46 persons
and other persons have applied for issuance of pattas.
16 In such situation, we are of the considered opinion that State
authorities are right in taking a stand that the construction located
on the land of Khasra No.97 are not illegal possession/
encroachments and as such were not removed. There is no
material to conclude that the entire land of khasra No.97 is
reserved for use of Tejaji Mela. On the other hand, the land of
(16 of 18) [CW-1037/2016]
Khasra No.97 is recorded as land of "Gair Mumkin Abadi". The
renumbered khasras of old Khasra No.97, are also recorded as
"Gair Mumkin Abadi" in the Revenue Record. The respondents
have clearly contended that the land of Khasra No.146, although
have the category of "Gair Mumkin Abadi", yet the same is left
open and is being used for Mela purposes and haat market. The
construction, which is located of khasra No.146 seems to be
protected by the decree of civil court, however its major part is
available for use of mela ground. Thus, we are of the opinion that
the constructions existed on the area of Khasra No.97 are required
to be removed. Therefore, the prayer of petitioners for removal of
such 100-120 constructions or more over the area of Khasra
No.97 is thus declined.
17. In view of the discussion made hreinabove, there is no
evidence available on record that any more allotment either for
use of residential or commercial purpose of the public utility land
to any private person exists. The few allotments, which were
made, have already been cancelled. Their illegal possession have
also been removed, thus, the principle of law as propounded by
the Supreme Court in the case of Jagdish Singh (Supra) stands
complied with in the present case.
18. As far grievance raised by respondent No.4-a Dhanraj
Vaishnav for seeking rehabilitation is concerned, the same is not
subject matter in issue in the present public interest litigation, as
such his grievance cannot be considered and no relief can be
accorded to him in the present petition.
19. As far as other private persons, who were allowed to be
impleaded as party respondent in the present petition vide order
dated 22.01.2018 and 22.05.2018 are concerned, they have
(17 of 18) [CW-1037/2016]
alleged that they are not having their construction and possession
over the land used for Mela or haat market, their possession is
beyond the land of mela ground. As this Court has already
observed hereinabove that the encroachment/illegal possession
over the land of mela ground have already been removed and
other constructions located at the land of "Gair Mumkin Abadi" are
not required to be removed, therefore no separate order is
required to be passed to meet out the grievance of these private
respondents.
20. After the detailed discussion made hereinabove, the
conclusion is that in vilage Budhadeet, Kota sufficient open land of
Khasra No.44 and 146, as visible in the site map Annexure-C
appended with the report of Court Commissioner dated dated
07.03.2017 as also admitted by the State authorities, is available
to be used for the purpose of Mela, Haat, Exhibition and other
common uses by villagers. The encroachment of the persons
having illegal allotment have already been removed, in compliance
of the order dated 21.01.1991 passed by the District Collector,
Kota and upheld by the High Court vide order dated 30.09.1996,
however if any private construction of illegal allottee over the land
of "Gair Mumkin Ground" of Khasra No.44 is still situated, its
existences shall remain subject to the judgment and decree
passed by the Civil Court. The construction over the land of
Khasra No.97 of "Gair Mumkin Abadi" are not required to be
removed. Thus, no additional direction to remove any
encroachment from the land of common use for villagers are
required to be passed in the present petition.
With the aforesaid findings and observations, the instant
public interest litigation petition is disposed of.
(18 of 18) [CW-1037/2016]
21. In view of above, application (I.A. No.41842/2017) for
modification of order dated 18.10.2016 and another application
(I.A. No.74386/2017) for restraining construction on mela ground
stand disposed of.
Any other application(s) if any, also stand(s) disposed of.
(SUDESH BANSAL),J (AKIL KURESHI),CJ
NITIN-TN /46
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