State Of Rajasthan vs Gopal Menariya
2023 Latest Caselaw 1933 Raj

[2023/RJJD/005928]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                     D.B. Spl. Appl. Writ No. 6/2020

1.    State Of Rajasthan, Through Secretary, Forest Department,
      Secretariat Jaipur
2.    Regional Conservator Of Forest, Udaipur.
3.    Deputy Conservator Of Forest Office Udaipur, Van Bhawan,
      Opposite Mehta Park, Chetak Circle Udaipur
                                                                       ----Appellants
                                      Versus
Gopal Menariya S/o Shri Tulsiram Menaria, R/o- 325, Panerion Ki
Madri, Udaipur.
                                                                      ----Respondent


For Appellant(s)             :    Mr. Sandeep Shah, AAG assisted by
                                  Mr. Lakshya Pagaria.
For Respondent(s)            :    Mr. R.S. Mankad.


             HON'BLE MR. JUSTICE ARUN BHANSALI
             HON'BLE MR. JUSTICE ASHOK KUMAR JAIN
                         JUDGMENT

23/02/2023

(PER HON'BLE MR. ARUN BHANSALI, J.)

This appeal is directed against the judgment dated

16.11.2018 passed by learned Single Judge in SBCWP

No.16879/2017, whereby, the writ petition filed by respondent has

been allowed and the impugned order / communication (Annex.19

with the writ petition) dated 6.12.2017 issued by the Deputy

Conservator of Forest, Udaipur, has been quashed and set aside

and he has been directed to forthwith and not later then within

period of two months issue the NOC for setting up petrol pump on

the land in question in terms of letter of intent.

The writ petition was filed by the respondent - petitioner

with the averments that he had purchased the land ad-measuring

[2023/RJJD/005928] (2 of 13) [SAW-6/2020]

0.4875 hectare from one Shanti Lal in revenue village Kaya Patwar

Circle Kaya, Tehsil Girwa, Udaipur, vide registered sale deed dated

4.8.2018. It was claimed that originally the Arazi number of the

land was 3103 and its total area was 12.3400 hectares, after

settlement the new Arazi Number of the land was 6466, land ad-

measuring 1.9500 hectare was regularized in name of one Dhanraj

out of the 12.3400 hectares of land of Arazi No.3103.

It was indicated that the said parcel of land was entered as

Arazi No.6466/1. The land thereafter changed hands and

ultimately a part of the said land ad-measuring 0.4875 hectares

out of Khasra No.6466/1 was transferred to petitioner by one

Shanti Lal vide sale deed dated 4.8.2014. It was inter alia claimed

that the said land ad-measuring 9 Bigha in Arazi No.3103 was

regularized by the Additional Tehsildar Girwa vide Missal

No.4967/1969 in the year 1969, however, on account of mistake

of the Revenue Department despite regularization in favour of

Dhanraj, in the revenue record the land was included in the land

belonging to the Forest Department. Mr. Dhanraj filed a suit before

the Additional District Collector, Udaipur, under Sections 88, 188

63(4) of the Rajasthan Tenancy Act, 1955 ('the Act of 1955'),

seeking declaration regarding the ownership and possession of the

land and permanent injunction.

The suit, after contest, was dismissed by the Additional

District Collector by judgment dated 30.6.2001.

Feeling aggrieved, Dhanraj filed appeal before the Revenue

Appellate Authority, Udaipur.

The Revenue Appellate Authority by its judgment dated

28.1.2003 accepted the appeal, set aside the judgment dated

[2023/RJJD/005928] (3 of 13) [SAW-6/2020]

30.6.2001 and declared Dhanraj as Khatedar of the land in Khasra

No.6466. The said judgment of the Revenue Appellate Authority

was not questioned by the respondents and the land continued to

remain recorded in terms of the declaration in the name of the

transferees from Dhanraj.

After purchase of land, the petitioner being desirous to

establish a petrol pump applied for conversion of land with Urban

Improvement Trust, Udaipur, which was converted and allotted to

the petitioner. The petitioner submitted an application to Bharat

Petroleum Corporation Ltd. ('BPCL') for establishing a retail outlet

and letter of intent dated 8.2.2017 was issued. BPCL applied to

the Additional District Collector, Udaipur, for No Objection

Certificate for establishment of petrol pump on the said land.

The Additional District Collector sought No Objection from 9

departments including the Forest Department. Each department

issued NOC, however, the Forest Department refused to issue

NOC. In the meanwhile, on account of purchase by the petitioner,

in the revenue record the portion of land purchased by the

petitioner was given Arazi No.7172/6466. It was also indicated

that the Forest Department by its communication dated 6.12.2017

(Annex.19) indicated to the District Magistrate that as per the

joint site inspection report dated 24.8.2017 of the Assistant Forest

Conservator, Udaipur, Regional Forest Officer, Udaipur and

Serveyor, the applied land is part of notified forest division

Harniyamai Dagal and as the applied area is that of forest, no

commercial activities be permitted.

Feeling aggrieved, the writ petition was filed by the

petitioner.

[2023/RJJD/005928] (4 of 13) [SAW-6/2020]

A reply to the writ petition was filed contesting the

averments made therein. Submissions were made that a

preliminary notification under Section 4 of the Forest Act, 1953

('the Act of 1953') was issued on 21.11.1957, which was

published on 2.11.1958 and in terms of Section 5, there is a bar of

accrual of rights in such notified land. Whereafter, final notification

dated 1.6.1977 was issued, which has been published in

December, 1977, and in view thereof, the very fact of

regularization of land in favour of Dhanraj in the year 1969 was

void ab-initio and is of no legal effect. Copy of Mokha report dated

13.8.2017 along with forwarding letter dated 24.8.2017, which

formed the basis for issuance of the communication dated

6.12.2017 were placed on record.

Qua the judgment of the Revenue Appellate Authority, it was

indicated that the said judgment dated 28.1.2003 was against the

directions of Hon'ble Supreme Court and consequently, could not

be relied on.

Learned Single Judge, after hearing the parties, by the

impugned order, after referring to the contentions of learned

counsel for the parties that the notification dated 21.11.1957 was

preliminary in nature, the final notification did not include the land

comprised in Arazi No.3103, the Revenue Appellate Authority had

come to the conclusion that the land ad-measuring 9 Bigha was

not part of the forest land and that the respondents were unable

to dispute the finding of Revenue Appellate Authority that the land

in question was distinct from forest area and consequently, came

to the conclusion that the communication dated 6.12.2017 putting

resistance to issuance of NOC, was without foundation and was

[2023/RJJD/005928] (5 of 13) [SAW-6/2020]

grossly illegal and arbitrary preventing the petitioner to trade on

his own land and consequently, passed the directions as noticed

hereinbefore.

Learned AAG made vehement submissions that the directions

issued by the learned Single Judge are ex-facie contrary to the

record and against the law. Submissions have been made that a

bare look at the plea raised by the writ petitioner indicates that

the claim made is that the original Khasra number of the land in

question was 3103 min, which in the new settlement became

6466 and its area was 12.3400 hectares. The land in question was

recorded in the jamabandi for Samwat years 2052 to 2055

(Annex.5) in the name of Forest Department, which entry was

repeated in jamabandi for the Samwat years 2056 to 2059

(Annex.7), wherein, based on the decree granted by the Revenue

Appellate Authority, it was indicated that Arazi No.6466/1

ad-measuring 1.9500 hectares be recorded in the name of

Dhanraj the predecessor-in-title of the petitioner. It was submitted

that the notification (Annex.R/1) dated 21.11.1957 was issued

under Section 4 of the Act of 1953 and once the said notification

was issued in terms of Section 5 of the Act of 1953, the purported

regularization (Annex.3) in the year 1969 could not have taken

place and/or in view of Section 5 of the Act, the same was

bad/void in law.

Further submissions were made that the entire basis of the

order passed by the learned Single Judge is the finding recorded

by the Revenue Appellate Authority, wherein, a declaration was

given that the land ad-measuring 9 Bigha in Khasra No.3103 be

recorded in the name of Dhanraj. It is submitted that the finding

[2023/RJJD/005928] (6 of 13) [SAW-6/2020]

of the Revenue Appellate Authority is also in ignorance of law

despite the fact that land in question has been recorded as forest

land in the relevant jamabadi.

It was submitted that the entire basis of the finding recorded

by the learned Single Judge is based on submissions made on

behalf of learned counsel for the respondent - petitioner that in

the notification the land comprised in Arazi No.3103 has not been

included. Submissions were made that Explanation to Section 4 of

the Act of 1953 clearly provides that for the purpose of specifying

the situation and limits of a reserved forest, it would be sufficient

to describe the limits of forest by roads, rivers, bridges or other

well known or readily intelligible boundaries and, therefore, the

basis sought to be relied on for the said purpose, has led to

arriving at a wrong conclusion.

Submissions were also made on the basis of the map

produced along with the reply to emphasize that the land in

question specifically falls within a forest area and, therefore, the

petition deserves dismissal.

An additional submission was sought to be made that while

the No Objection by the Additional District Collector has been

sought qua Arazi No.6466/1, the allotment order dated

23.10.2017 issued by UIT is of Arazi No.7172/6466 and,

therefore, no direction could have been issued for issuance of NOC

without clarifying the said position.

Submissions have also been made that the Court could not

have directed issuance of NOC straight-away without consideration

of relevant aspects by the respondent Forest Department even if

the land in question was not part of the forest area and on that

[2023/RJJD/005928] (7 of 13) [SAW-6/2020]

count also, the order impugned deserves to be set aside. It was

prayed that the order impugned be set aside and the petition be

dismissed.

Learned counsel for the respondent vehemently opposed the

submissions. It was submitted that the appeal filed by the State

has absolutely no substance, which deserves dismissal. It is

submitted that a bare perusal of Annex.3 order of regularization

and the jamabandi for Samwat years 2031-2034 (Annex.4), which

corresponds to the year 1974-77, clearly reveal that land ad-

measuring 9 Bigha comprised in Arazi No.3103, was regularized in

favour of Dhanraj and in the jamabandi where the land in question

comprising Khasra No.3103 was recorded as 'Bila Naam Sarkar',

by Entry No.759, 9 Bigha of land was entered in the name of

Dhanraj.

It was submitted that the reliance placed by the respondents

on the revenue entries, wherein, the land comprised in Khasra

No.6466 has been recorded in the name of Forest Department is

absolutely misplaced, inasmuch as, it is only on account of the

wrong revenue entries regarding the land in the name of Forest

Department that the predecessor of the petitioner Dhanraj filed

suit seeking correction of the revenue entries, which suit though

was dismissed by the Additional Collector, the Revenue Appellate

Authority, on an appeal filed, after exhaustive discussion under

various issues, categorically came to the conclusion that the land

did not belong to the Forest Department and consequently,

allowed the appeal and decreed the suit. It is submitted that once

the judgment of the Revenue Appellate Authority has not been

[2023/RJJD/005928] (8 of 13) [SAW-6/2020]

challenged, the same has attained finality, the appellants are

bound by the said judgment and cannot claim otherwise.

It was submitted that the plea raised about implication of

provisions of Section 4 & 5 of the Act of 1953, has no basis,

inasmuch as, the land never belonged to the Forest Department

and only on account of wrong recording of the land as belonging

to the Forest Department, the provisions cannot be applied. It was

prayed that the appeal be dismissed.

We have considered the submissions made by learned

counsel for the parties and have perused the material available on

record.

For establishment of retail outlet when the petitioner sought

NOC from the District Magistrate, he in turn sought NOC from

various departments including the Forest Department. The Forest

Department inter alia sent communication dated 6.12.2017

indicating that the land in question was part of the notified forest

block Harniyamai Dagal. The said communication indicates that

land comprised in Khasra No.7172/6466 min ad-measuring 0.2600

Bigha was within Khasra No.6466 of forest block Harniyamai Dagal

and was, therefore, forest land. Apparently, the said report has

been made on the basis that entire Khasra 6466 is forest land,

which indication was made in ignorance of the fact that after the

judgment by the Revenue Appellate Authority, the land ad-

measuring 9 Bigha was recorded in the name of Dhanraj as

Khasra No.6466/1, which is evident from the endorsement made

in Jamabandi (Annex.7).

As noticed hereinbefore, apparently when in the jamabandi

in the Samwat years 2056 to 2059 i.e. in the year 1995 onwards,

[2023/RJJD/005928] (9 of 13) [SAW-6/2020]

the land in dispute was recorded as that of Forest Department, the

plaintiff Dhanraj filed suit before the Additional District Collector,

who dismissed the suit.

On appeal before the Revenue Appellate Authority, the

authority decided all the issues afresh and recorded findings that

land ad-measuring 9 Bigha in Arazi No.3103 was regularized in

favour of Dhanraj in the year 1969. The Revenue Appellate

Authority also came to the conclusion that by mutation No.766,

105 Bigha 15 bishwa land was recorded as 'Bila Naam' regarding

forest block Harniyamai Dagal, wherein, the total area of Khasra

No.3103 was indicated as 115 Bigha 15 biswa and, therefore, as

out of 115 Bigha 9 biswa land, 105 Bigha 16 biswa land was

recorded in the name of Forest Department, the land of the

petitioner before the Revenue Appellate Authority was different

from the Forest Land. It was also concluded that as in the Khasra

Milan Khasra No.3103 has been shown as corresponding to new

Khasra No.6466, the same was different from forest land.

Once the Revenue Appellate Authority had recorded

categorical finding based on the documentary evidence available

before it, to which the department was a party and the same was

thereafter followed by the revenue authorities and land in question

came to be recorded in favour of the predecessors of the

respondent - petitioner and ultimately in name of the respondent

- petitioner and at no stage since passing of the judgment dated

28.1.2003, the said judgment was questioned by the Forest

Department, as such to claim that the said judgment, even if the

same is against the department is void, cannot be countenanced.

[2023/RJJD/005928] (10 of 13) [SAW-6/2020]

Once a finding of fact has been recorded by the Revenue

Appellate Authority that the land in question did not form part of

the forest land, by merely relying on the notification issued under

Section 4 and its implications in terms of Section 5, the appellant

cannot seek reversal of finding of the Revenue Appellate Authority,

inasmuch as, once it is held that the land does not form part of

the forest land, the provisions of Section 4 and its implications in

terms of Section 5 of the Act of 1953, would have no application,

as by bare looking at the said notifications, it cannot be

ascertained as to whether the land in question has been included

in the notification or not. The said aspect, even otherwise is

fortified from the submissions made by the appellant that

notifications issued in the year 1957 and 1977 i.e. preliminary and

the final notifications, does not indicate the khasra numbers

involved.

It would be appropriate to quote the finding of the Revenue

Appellate Authority with regard to the measurements and the fact

about land in question being different from that, which could have

been recorded in the name of Forest Department. The finding

reads as under:-

",d nLrkost ou foHkkx us lgk;d ou cUnkscLr vf/kdkjh mn;iqj ckcr~ ou [k.M gjfu;k e; Mkxy xzke dk;k dk izLrqr fd;k gS] tks o'kZ 1977&78 dk gS] blesa tks jdck bl ou [k.M ds Cyksd ds vUnj vk;k gS] mldk jdck vafdr fd;k x;k gSA mDr ifji= ds vuqlkj fookfnr lkfcd vkjkth uacj 3103 dk dqy jdck 153 ch?kk 9 fcLok Fkk] ftlesa ou [k.M ds vUnj tks jdck vk;k gS] og 105 ch?kk 15 fcLok vafdr fd;k x;k gSA blds vfrfjDr o'kZ 1978 esa fcykuke Hkqfe dk ukekUrjdj.k ou foHkkx ds i{k esa tks [kksyk x;k Fkk] mldk

[2023/RJJD/005928] (11 of 13) [SAW-6/2020]

ukekUrjdj.k la[;k 766 xzke dk;k gekjs lkeus izLrqr gqbZ gSA ml ukekUrjdj.k ds vuqlkj lkfcd vkjkth uacj 3103 dk 105 ch?kk 15 fcLok dk ukekUrjdj.k ou foHkkx ds uke [kksyk x;kA bl rjg bu fofHkUu nLrkostksa ls ;g fLFkfr lkeus vkrh gS fd lkfcd vkjkth [kljk uacj 3103 dk izkjEHk esa 153 ch?kk 9 fcLok jdck Fkk] ftlls vihykUV ds i{k esa 9 ch?kk Hkwfe dk ukekUrjdj.k [kksyk x;k FkkA ckn esa bldk jdck 132 ch?kk 9 fcLok jg x;k rFkk bldk cUnkscLr tc gqvk] ml le; ou cUnkscLr vf/kdkjh us ou lhek esa 105 ch?kk 15 fcLok Hkwfe ekuh FkhA ysfdu ukekUrjdj.k 766 esa 105 ch?kk 15 fcLok Hkwfe dk vey&njker fcykuke ls ou[k.M gjfu;k e; Mkxy ds uke ls fd;k x;k] tcfd bl ukekUrjdj.k dks Hkjrs le; [kljk uacj 3103 dk dqy jdck 115 ch?kk 9 fcLok crk;k x;k FkkA ;fn ge tekcUnh laor~ 2030 ls 34 dks ns[ksa] rks [kljk uacj 3103 tehu dk dqy jdck 132 ch?kk 9 fcLok fn[kk;k x;k gS vkSj blds fooj.k ds dksye esa ukekUrjdj.k la[;k 722 ls 9 ch?kk] 751 ls 4 ch?kk rFkk 752 ls 4 ch?kk dk ,yksVesUV gksuk vafdr gSA ;fn ge 132 ch?kk 9 fcLok esa ls mDr rhuksa ukekΠdh dqy 17 ch?kk Hkwfe de djrs gS rks [kljk uacj 3103 esa 115 ch?kk 9 fcLok Hkwfe gh "ks'k jg tkrh gSA vkSj ukekUdj.k la[;k 766 tks fnukad 23-10-77 dks lgk;d Hkw&izcU/k vf/kdkjh mn;iqj }kjk Hkjk x;k gS] ds vuqlkj [kljk uacj 3103 dh 115 ch?kk 9 fcLok esa ls 105 ch?kk 16 fcLok Hkwfe ou foHkkx ds uke Lohd`r dh xbZ gSA blls Li'V gS fd o'kZ 1977 rd vihykUV ds i{k esa lk-[k- uacj 3103 esa ls vkoafVr dh xbZ Hkwfe ou foHkkx dh Hkwfe ls fcYdqy vyx gS] tks bu rhuksa nLrkostksa ls Hkyh&Hkkafr lkfcr gks tkrh gSA ,slh fLFkfr esa gky lsVyesUV dks vihykUV ds i{k esa fd;s x;s bUnzkt dks ;Fkkor j[kuk Fkk] tcfd gky jsdkMZ esa vihykUV ds uke dk vadu gVk fn;k x;k gS] tcfd fcuk l{ke vf/kdkjh ds vkns"k ds ,slk djus dk vf/kdkjh lsVyesUV foHkkx dks ugha FksA"

The above finding, based on documentary evidence available

on record, has not even been assailed by the State either in reply

to the writ petition or in the present appeal, except for placing

reliance on the notifications under the Act of 1953.

[2023/RJJD/005928] (12 of 13) [SAW-6/2020]

The submission made by learned counsel for the appellant

that the invalidity / voidness of the order of regularization and/or

of the judgment passed by the Revenue Appellate Authority can

be set up at any state, would have had same relevance, in case, it

was established that the land in question indeed form part of the

forest land, however, as a fact it has been found by the Revenue

Appellate Authority that the land in question did not form part of

the forest land, the plea sought to be raised, cannot be accepted

unless the order passed by the Revenue Appellate Authority was

questioned by way of appropriate proceedings.

The plea raised that the learned Single Judge did not

consider the fact that NOC was sought for Khasra No.6466/1,

whereas, the land of the respondent - petitioner is situated in

Khasra No.7172/6266 min, is without any basis, inasmuch as, the

entire parcel of 9 Bigha, which was regularized in favour of

Dhanraj, was recorded as Khasra No.6466/1 and out of that the

land, which was transferred to respondent - petitioner being a

part of the said land, the same was recorded as 7172/6466 min

and as such, there was apparently no confusion in this regard.

The further plea raised that no direction could have been

granted regarding issuance of NOC by the learned Single Judge,

also apparently has no basis, inasmuch as, once it was found by

the learned Single Judge that the land in question is not part of

the forest land, the locus standi of the Forest Department on the

basis of which the objection was raised, came to an end and no

other objection was raised by the Forest Department in its

communication to the District Magistrate and, therefore, the plea

raised in this regard also has no basis.

[2023/RJJD/005928] (13 of 13) [SAW-6/2020]

In view of the above discussion, the judgment impugned

does not call for any interference, there is no substance in the

appeal, the same is, therefore, dismissed.

                                   (ASHOK KUMAR JAIN),J                                    (ARUN BHANSALI),J


                                    Sumit Sharma/-









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