Smt. Lalita vs State And Ors
2022 Latest Caselaw 1097 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 8423/2008

Smt. Radha Devi

----Petitioner Versus State And Ors

----Respondent

S.B. Civil Writ Petition No. 8511/2008

Smt. Sunita Bai

----Petitioner Versus State And Ors

----Respondent

S.B. Civil Writ Petition No. 8512/2008 Smt. Lalita

----Petitioner Versus State And Ors

----Respondent S.B. Civil Writ Petition No. 8519/2008 Shiv Narayan

----Petitioner Versus State And Ors

----Respondent S.B. Civil Writ Petition No. 8542/2008 Smt. Geeta Bai

----Petitioner Versus State And Ors

----Respondent

(D.B. SAW/1042/2008 has been filed in this matter. Please refer the same for further orders)

(2 of 9) [CW-8423/2008]

S.B. Civil Writ Petition No. 8543/2008

Smt. Sushila Bai

----Petitioner Versus State And Ors

----Respondent

For Petitioner(s) : Mr. Chaitanya Gahlot on VC. For Respondent(s) : Mr. K.K. Bissa on VC.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

24/01/2022

1. In wake of instant surge in COVID-19 cases and spread of its

highly infectious Omicron variant, lawyers have been advised to

refrain from coming to the Courts.

2. Learned counsel for the petitioners, at the outset, has drawn

the attention of this Court towards the order dated 23.10.2008

passed by this Hon'ble Court, individually in all these petitions,

whereby the petitions were dismissed; the operative portion of the

said order dated 23.10.2008 reads as under:

"In my opinion, if no record was maintained with regard to the auction proceedings by the Panchayat, then it can be said that whole proceedings were illegal, therefore, the finding given by the District Collector in the order dated 12.08.2008 does not require interference. Accordingly, the writ petition is dismissed."

However, learned counsel furnished before this Court the order

dated 02.05.2018 passed by a Division Bench of this Hon'ble Court

(D.B. SAW/1042/2008 has been filed in this matter. Please refer the same for further orders)

(3 of 9) [CW-8423/2008]

in S.A.W. Nos.1041/2008, 1044/2008, 1042/2008, 1139/2008,

1043/2008 & 1100/2008 arising out of the present writ petitions

i.e. S.B. C. W.P. Nos.8423/2008, 8511/2008, 8512/2008,

8519/2008, 8542/2008 & 8543/2008, respectively. Learned

counsel further submits that vide the said order, the Hon'ble

Division Bench, while disposing of the aforementioned appeals and

restoring the present petitions, issued a direction for deciding the

same afresh on merits.

The operative portion of the said order dated 02.05.2018 reads as

under:

"11. In our opinion the learned Single Judge ought to have looked into the material placed by the writ petitioners before the District Collector Chittorgarh who was the Revisional Authority and keeping in view that the revision was filed after 24 years the effect of the time period qua the Panchayat was not being able to produce the relevant record and evidence had to be weighted.

12. The appeals are disposed of setting aside the impugned order dated 23.10.2008. The writ petitions filed by the appellant-writ petitioners are restored, to be decided by the learned Single Judge afresh on merits."

3. Thereafter, learned counsel for the petitioners submits that in

SBCWP Nos.8511/2008, 8512/2008, 8519/2008 & 8542/2008,

this Hon'ble Court had passed the following interim order on

12.07.2018 (SBCWP No.8511/2008):

"The matter has been listed before this court pursuant to directions given by Hon'ble Division Bench of this Court vide order dated 02.05.2018. The Hon'ble

(D.B. SAW/1042/2008 has been filed in this matter. Please refer the same for further orders)

(4 of 9) [CW-8423/2008]

Division Bench has directed the court to reconsider the controversy in detail and decide the writ petitions on merits.

Let notices be issued to the respondents. Mr. Manish Patel accepts notice on behalf of all the respondents and prays for time to complete instructions. Thus, notice need not be issued. In the meantime, status quo shall be maintained regarding disputed land in question. Henceforth the name of Mr. Manish Patel be shown in the cause list.

List after six weeks.

Connect with S.B. Civil Writ Petition Nos.8512/2008, 8519/2008 & 8542/2008."

Learned counsel thus, prays that the aforequoted interim order

may also be passed in the remaining petitions i.e. SBCWP

No.8423/2008 & 8543/2008.

However, looking to the fact that the present petitions pertained to

the year 2008, this Court instead of making any interim

adjudication, as prayed by learned counsel for the petitioner,

deems it appropriate to decide the matter finally.

4. In the aforesaid backdrop and the fact that since all these

petitions involve a common controversy, therefore, with the

consent of learned counsel for the parties, the same have been

heard together and are being decided by this common judgment.

5. For the purpose of the present adjudication, the prayer

clauses and the facts are being taken from SBCWP No.8423/2008,

while treating the same as lead case.

6. These writ petitions have been preferred claiming, in sum

and substance, the following reliefs:

(D.B. SAW/1042/2008 has been filed in this matter. Please refer the same for further orders)

(5 of 9) [CW-8423/2008]

"I. by an appropriate writ, order or direction the order dated 12.8.2008 (Annex.9) passed by the respondent No.2 in Revision-Panchayat No.15/2007 (All Villagers Vs. Jagdish & Anr.) may kindly be quashed and set aside declaring it to be illegal qua the petitioner; II. by an appropriate writ, order or direction the respondents may kindly be restrained to not to interfere in the sole title, peaceful possession over the property hold by the petitioner in view of sale-deed dated 26.2.1983 (Annex.1)."

7. For the purpose of brevity, this Court observes the facts in brief

which are that in 1983, the concerned Gram Panchayat planned

and prepared a residential scheme for the development of the

village land adjacent to the township of Chittorgarh, and that in

doing so an auction was made and a subsequent sale deed was

executed in the favour of the present petitioners by respondent

no. 8, the concerned Gram Panchayat. However, the said land in

question was sanctioned to be entered as 'abadi land' instead of

'charaga land' through the requisite procedural formalities, before

the sale deed was executed. However, the present petitioners

continued to enjoy the possession of land, however, subsequently

when a new sarpanch was elected, the gram panchayat sought to

rectify the erroneous allotment of land to the present petitioners.

The petitioner, after availing of the legal recourse, under the

concerned provisions of the Rajasthan Panchayati Raj Act of 1994

and the Rajasthan Panchayat Rules of 1961, comes before this

Court seeking quashing of impugned order issued by respondent

no. 2 in favour of respondent no. 8.

8. Heard learned counsel for both parties.

9. In support of his contention that the limitation period to

challenge allotment of the said land in question was over, the

(D.B. SAW/1042/2008 has been filed in this matter. Please refer the same for further orders)

(6 of 9) [CW-8423/2008]

learned counsel for the petitioner cites at the bar, the following

judgments, rendered by this Court in Murali and Anr. Vs. Addl.

Collector, Nagaur and Ors. D.B. Civil Special Appeal No. 522

of 2002 and Panna Lal and Anr. Vs. Smt. Sushila Devi and

Ors. D.B. Civil Special Appeal (W) No. 108 of 2006.

10. Learned counsel for the respondent cites the judgment of

Chiman Lal Vs. State of Rajasthan and Ors. S.B. Civil Writ

Petition No. 1688 of 1983 in stating that the period of

limitation, when not expressly determined by the concerned

statute, has to be reasonably fixed keeping in view the facts and

circumstances of each case.

11. This Court observes, as is evident from the order, dated

12.08.2008, passed by the concerned District Collector,

Chittorgarh, that the land in question was only entered into as

'abadi land' on 04.06.1986 while the auction was conducted on

23.09.1981, the land was still recorded as'charaga / gauchar land'.

Further, no proper documents viz. sale deed, receipt book, cash

book, of the auction proceedings are available with the concerned

Gram Panchayat.

12. Further, the patta issued through the procedure undertaken by

way of auction, through which the petitioner claims to have right

to land emanates, is also not traceable. And, the learned counsel

for the petitioner, although places reliance on the sale deed

document, at Annexure 1 of the record, this Court observes that

this document was created on 26.2.1983, while the auction

proceedings were carried out two years prior, in 1981.

13. It is therefore clear as crystal, that the land in question on the

purported date of sale was in fact 'charaga / gauchar land' and

record reflects, as this Court has observed above, that the land in

(D.B. SAW/1042/2008 has been filed in this matter. Please refer the same for further orders)

(7 of 9) [CW-8423/2008]

question got converted into 'abadi land' only much after, on

05.06.1986 i.e. after a period of about 5 years from the date on

which the auction proceedings were carried out, three years from

the purported sale deed.

14. This Court also observes that it is also not the case of the

petitioner that land in question was converted into 'abadi land'

from 'charaga land' before the auction proceedings were carried

out or the sale deed entered into.

15. With respect to the objection raised by the learned counsel for

the petitioner that the period of limitation to challenge the

allotment of the land in question has long passed, this Court does

not find merit in this submission so made.

16. In arriving at this conclusion, this Court observes the succinct

reasoning laid down in Chiman Lal (supra) by the Hon'ble

Special Bench of this Hon'ble Court, wherein it was observed that

when a statute omits to fix any period of limitation, then the

power has to be exercised within reasonable time depending on

facts of the given case, though in cases of fraud,

misrepresentation, collusion, lack of jurisdiction, violation of

statutory provisions and orders being void or against public

interest, power can be exercised at any time.

17. This Court also observes the ratio decidendi laid down by the

Hon'ble Division Bench of this Court in Gulab Kothari Vs. State

of Rajasthan and Ors. D.B. Civil Writ Petition No.1554/2004

at Paras. 197 - 199:

"197. We are of the considered opinion that keeping in view the mandate of the provisions of the Act of 1955 and the Rules made thereunder, the preservation and development of the pasture land by the State Authorities is the rule and diversion of user thereof is an exception

(D.B. SAW/1042/2008 has been filed in this matter. Please refer the same for further orders)

(8 of 9) [CW-8423/2008]

and therefore, the power conferred upon the Collector under Rule 7 of the Rules of 1955, to change the classification of the pasture land should be exercised sparingly only in the larger public interest and not so as to subserve the interest of any individual.

198. At this stage, it is to be noticed that in the Writ Petition No.5907/08, the petitioner has given the details of some of the orders passed by the JDA converting the land set apart as pasture land in the rural areas of Jaipur Region but there is no details available in respect of the rural areas falling within the Jodhpur Region, Ajmer Region and various districts of the State and therefore, before further dilation of the issue, it would be appropriate that the directions are issued to the State to furnish the complete details regarding the availability of the pasture land in various districts of the State of Rajasthan as on the date of commencement of the Act of 1955, the diversion of the user of the pasture land permitted after the commencement of the Act of 1955, and the land set apart as pasture land after the commencement of the Act of 1955. The State should also furnish the district-wise details of unauthorised occupation over the pasture land.

199. But in any case, pending consideration of the issue, as mandated by the Hon'ble Supreme Court in Jagpal Singh's case (supra), the indiscriminate diversion of the pasture land for other purposes needs to be checked and any unauthorised occupation over the pasture land by unscrupulous persons needs to be dealt with strictly." (emphasis added)"

18. In Abdul Rahman Vs. State of Rajasthan D.B. Civil Writ

Petition No. 1536/2003 judgment dated 02.08.2004, on an

issue regarding encroachment on public utility land, the Hon'ble

Division Bench of this Court observed that encroachment of the

said lands, even by the Gram Panchayat, through the Sarpanch for

(D.B. SAW/1042/2008 has been filed in this matter. Please refer the same for further orders)

(9 of 9) [CW-8423/2008]

the construction of a school, and the subsequent submission of a

proposal to convert the said land into 'abadi land', on the ground

that it may be utilized to construct a school as there were already

a number of government buildings viz. anganwadi, a health

centre, G.L.R. building, etc. and a number of residential homes

constructed on the said lands, would not be in the larger public

interest of preserving the land in question on the grounds that

through the 42nd Amendment to the Constitution of India, it was

the duty of the State, under Article 48A and Article 51A to protect

the natural environment; and that under Article 21, every person

has the right to a safe and healthy environment.

19. This Court therefore, observes that under no circumstances it

may be permitted that the 'charaga/gauchar' land i.e. pasture land

be taken away by someone on the pretext of sale, purchase or

through a patta.

20. This Court, after a perusal of the record, and hearing learned

counsel for both parties, and observing the judgments rendered in

the aforementioned cases finds that the concerned authority

rightly exercised its power in passing the impugned order, and

that the issue in the present case warrants the exercise of the

power of revision of the concerned authority.

21. In light of the aforesaid observations, the present petitions are

dismissed. All pending applications stand disposed of.

(DR.PUSHPENDRA SINGH BHATI),J.

1-SKant/-

(D.B. SAW/1042/2008 has been filed in this matter. Please refer the same for further orders)

Powered by TCPDF (www.tcpdf.org)