Jas Raj vs State Of Rajasthan
2023 Latest Caselaw 4280 Raj

[2023/RJJD/013633]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Civil Writ Petition No. 16598/2022

Jas Raj S/o Sita Ram, Aged About 54 Years, R/o Ward No. 8, Kakariya Market, Village Patodi, Tehsil Pachpadra, District Barmer Rajasthan (Aadhar No. 6004 3541 2207)

----Petitioner Versus

1. State Of Rajasthan, Secretary, Department Of Revenue, Government Of Rajasthan, Jaipur.

2. District Collector, Barmer.

3. Tehsildar, Patodi, Balotra, Barmer.

4. Sub Division Officer, Balotra, Barmer.

5. Gram Panchayat Patodi, Tehsil Pachpadra, District Barmer.

                                                                     ----Respondents


For Petitioner(s)            :     Mr. Moti Singh
For Respondent(s)            :     Mr.   Sunil    Beniwal,  AAG                    with
                                   Mr. Utkarsh Singh Gurjar
                                   Mr. Govind Suthar



             HON'BLE MR. JUSTICE VIJAY BISHNOI

HON'BLE MR. JUSTICE YOGENDRA KUMAR PUROHIT

Judgment / Order

09/05/2023

[PER HON'BLE VIJAY BISHNOI, J.]

1. The instant writ petition in the nature of Public Interest

Litigation is preferred on behalf of the petitioner claiming the

following reliefs :

"It is therefore, humbly prayed on behalf of petitioner that this writ petition for Public Interest Litigation may kindly be allowed and passed the following directions :-

[2023/RJJD/013633] (2 of 9) [CW-16598/2022]

A. By an appropriate, writ, order or direction may kindly be issued and the order impugned dated 30.03.2021 (Annexure-6) passed by District Collector, Barmer may kindly be quashed and set aside.

B. By an appropriate, writ, order or direction may kindly be issued and the land of the Khasra No.4114/3723 area 1.13 bigha of the Village Patodi, Tehsil Pachpadra, District Barmer, may kindly be directed to restore in original position as exists on or before 30.03.2021.

C. By an appropriate, writ, order of direction may kindly be issued and the respondent may kindly be restricted to make any allotments/set apart of the land of Khasra NO.4114/3723 recorded as Gair Mumkin Gochar of Village Patodi, Tehsil Pachpadra, District Barmer. D. That nay other relief, which this Hon'ble Court deems fit, by which the petitioner may get full justice may also be allowed."

2. Vide order dated 30.3.2021, the District Collector,

Barmer has converted 500 Sq. Meters of land, out of 1.13 Bigha

land, recorded as Gair Mumkin Gochar falling in Khasra

No.4114/3723 while exercising powers under Rule 7 of the

Rajasthan Tenancy (Government) Rules, 1955 (for short 'the Rules

of 1955') and thereafter has allotted the said 500 Sq. Meters of

land for the purpose of erecting a Martyr Memorial (for short

'Shahid Smarak') while exercising powers under the Conditions for

(Allotment of Unoccupied Government Agricultural Lands for the

Construction of Schools, Colleges, Dispensaries, Dharamshalas &

Other Buildings of Public Utility), 1963 (for short 'the Conditions of

[2023/RJJD/013633] (3 of 9) [CW-16598/2022]

1963') at village Patodi. Simultaneously, the District Collector,

Barmer has also ordered for converting 500 Sq. Meters of Gochar

land out of 3.16 Bigha of Khasra No.3717 of village Patodi

recorded as Barani Soyam.

3. Brief facts necessary for adjudication of the case are

that on 5.3.2021, the Gram Panchayat, Patodi has filed an

application before the Tehsildar, Pachpadra, District Barmer

requesting for allotting 8 Biswa of Gair Mumkin Gochar land out of

1.13 Bigha of land falling in Khasra No.4114/3723 of village Patodi

for the purpose of constructing Shahid Smarak. The Gram

Panchayat has also offered that in compensation of the allotment

of 8 Biswa of land of Khasra No.4114/3723 of village Patodi, 8

Biswa of land of Khasra No.3717 be set apart as Gochar. Along

with the said application, a resolution of this effect passed by the

Gram Panchayat dated 5.3.2021 is also enclosed. The Gram

Panchayat has also enclosed a No Objection Certificate stating

therein that if 8 Biswa of the land of Khasra No.3717 is set apart

for Gair Mumkin Gochar, the Gram Panchayat has no objection.

4. The Tehsildar, Pachpadra has forwarded the said

application to the SDO, Balotra, who in turn, after getting the

requisite report from the Tehsildar, Pachpadra has referred the

matter to the District Collector, Barmer vide letter dated

12.3.2021 along with the check list for necessary action.

5. The Gram Panchayat, Patodi vide letter dated

22.3.2021, addressing to the District Collector, Barmer, has

informed that the Shahid Smarak will be constructed from the

donation of public. The District Collector, Barmer, thereafter,

[2023/RJJD/013633] (4 of 9) [CW-16598/2022]

proceeded further and ultimately vide order dated 30.3.2021 has

allotted 500 Sq. Meters of Gochar land of Khasra No.4114/3723

for the purpose of construction of Shahid Smarak in village Patodi

while converting 500 Sq. Meters of land of Khasra No.3717 as

Gochar land.

6. Assailing the order impugned, learned counsel for the

petitioner has argued that the District Collector, Barmer has no

jurisdiction to issue the allotment order for the purpose of

construction of Shahid Smarak. Referring to Clause 2 and 4 of the

Conditions of 1963, it is argued by learned counsel for the

petitioner that Clause 2(v) provides for allotment of land for the

purpose of erection of statute of a Shahid Smarak and Clause 4(i)

clearly provides that only the SDO concerned is having jurisdiction

for allotting the land for erection the statute of Shahid Smarak.

Learned counsel for the petitioner has submitted that from the

above, it is clear that the District Collector, Barmer has no

jurisdiction to allot the land for the purpose of construction of

Shahid Smarak, as such, the impugned order is without

jurisdiction and the same is liable to be set aside.

7. Learned counsel for the petitioner has further

submitted that as per proviso to Clause 3 of the Conditions of

1963, the land for the purpose of construction of Shahid Smarak

can only be allotted when the work is sanctioned by the

competent authority under the MLA, Local Area Fund Scheme. It is

submitted that in the present case, no work has been sanctioned

under the sanctioned Scheme and, as such, the allotment of the

land in question is bad in the eye of law.

[2023/RJJD/013633] (5 of 9) [CW-16598/2022]

8. Learned counsel for the petitioner has further argued

that as per proviso to sub-rule (2) of Rule 7 of the Rules of 1995,

the pasture land can only be allotted for the purpose of

infrastructure projects and the definition of infrastructure project

does not include Shahid Smarak.

9. Learned counsel for the petitioner has also submitted

that the villagers of village Patodi have agitated that the Gram

Panchayat and its functionaries are trying to grab the Gochar land

situated in the middle of the village in the name of construction of

Shahid Smarak and, therefore, they have protested before the

authorities concerned, but the authorities concerned did not pay

any heed to it and, in such circumstances, the petitioner is forced

to approach this Court by way of filing the instant writ petition in

public interest.

10. Learned counsel for the petitioner has also submitted

that this Court in Gulab Kothari, Editor, Rajasthan Patrika,

Jaipur Vs. State of Rajasthan & Ors., reported in 2017(2)

RLW 1178 (Raj.) has specifically held that pasture land cannot

be converted for any other purpose except for benefit of public at

large.

11. Learned counsel for the petitioner, thus, prayed that the

writ petition may kindly be allowed and the impugned order dated

30.3.2021 passed by the District Collector, Barmer may kindly be

quashed and set aside in the interest of public of village Patodi.

12. Opposing the writ petition, Mr. Sunil Beniwal, learned

AAG has submitted that the District Collector, Barmer has not

committed any illegality in passing the impugned order. It is

[2023/RJJD/013633] (6 of 9) [CW-16598/2022]

submitted that since the land which is allotted for the purpose of

construction of Shahid Smarak, is recorded as Gochar land, the

District Collector, Barmer is the only competent authority to

convert the Gochar land for non agricultural purposes, the SDO

has referred the matter to the District Collector, Barmer, who while

exercising powers under Rule 7 of the Rules of 1995 has set apart

the Gochar land of village Patodi and thereafter allotted it for the

purpose of construction of Shahid Smarak as per the Conditions of

1963.

13. Mr. Beniwal, learned AAG has further argued that as per

proviso 5 of Clause 3(1) of the Conditions of 1963, the land not

only can be allotted for the purpose of construction of Shahid

Smarak when the work is sanctioned by the competent authority

under the MLA, Local Area Fund Scheme, but also can be allotted

if there is satisfaction that adequate funds are available for this

purpose through contribution/donation by the local people. It is

submitted that in the present case, the Gram Panchayat vide letter

dated 22.3.2021 has communicated to the District Collector that

the Shahid Smarak will be constructed with the

contribution/donation of the local people.

14. Mr. Beniwal has further submitted that the land allotted

by the District Collector, Barmer for the purpose of construction of

Shahid Smarak is located in the centre of the village surrounded

by the market and has not been used for the purpose of grazing

cattle since long. It is further submitted that though, construction

of Shahid Smarak was proposed to be done by

contribution/donation through the local people, however later on,

[2023/RJJD/013633] (7 of 9) [CW-16598/2022]

the local MLA has proposed rupees ten lac for the purpose of

construction of Shahid Smarak along with the boundary wall and

for erecting structure for the National Flag and sanction in this

regard has already been granted on 2.8.2022.

15. It is also submitted that with the construction of Shahid

Smarak, the possibility of encroachment over the land lying in the

centre of the village is ruled out. It is also submitted that

construction of Shahid Smarak in the centre of the village cannot

be said to be detrimental to the interest of public at large.

16. Mr. Beniwal, thus, prayed that there is no force in this

writ petition and the same is liable to be dismissed.

17. Heard learned counsel for the parties and perused the

material available on record.

18. The allotment of the land for the purpose of

construction of Shahid Smarak is made on the request of the

Gram Panchayat, Patodi. The allotted land was recorded as Gochar

and, in such circumstances, the SDO, Pachpadra has referred the

matter to the District Collector because only the District Collector

is the competent authority to convert the Gochar land for non

agricultural purposes as per Rule 7 of the Rules of 1955. Though,

it is noticed that as per Clause 4(i) of the Conditions of 1963, for

the purpose of erection of statute of a Shahid Smarak, the SDO is

the competent authority for allotment of the land, however, 5 th

proviso to the Clause 3(ii)(d) of the Conditions of 1963, the land

for the purpose of erecting statue of a Martyr can only be allotted

if work for that purpose is sanctioned under the MLA, Local Area

Fund Scheme or if the concerned Collector is satisfied that

[2023/RJJD/013633] (8 of 9) [CW-16598/2022]

adequate funds are available for this purpose through

contribution/donation by the local people. In the present case, the

Gram Panchayat, Patodi has communicated to the District

Collector that Shahid Smarak would be constructed with the

contribution of local people and probably for that reason, the

Collector has passed the order of allotting the land for

constructing Shahid Smarak.

19. So far as the argument of learned counsel for the

petitioner that the Gochar land can only be set apart or allotted

for the purpose of infrastructure projects is concerned, the same is

devoid of merit because as per Rule 7(i) of the Rules of 1955, the

Collector can change the classification of any Gochar land from

agriculture to non agriculture purposes and also for the

infrastructure projects. Certainly, the construction of Shahid

Smarak does not fall under the definition of infrastructure project,

but very well comes within the definition of non-agriculture

purpose.

20. The other argument of learned counsel for the

petitioner that as per Gulab Kothari's case (supra), the pasture

land can only be converted for other purpose in the interest of

public is concerned, we are of the view that construction of Shahid

Smarak cannot be termed as against the interest of public. Shahid

Smarak can inspire the people and may also serve a purpose i.e.

building of strong feelings of Patriotism in the public.

21. Moreover, after allotment of the land for the purpose of

construction of Shahid Smarak, as the local MLA has sanctioned

fund for the construction of the same and for erecting structure for

[2023/RJJD/013633] (9 of 9) [CW-16598/2022]

the National Flag, it would not be in the interest of anybody to

cancel the allotment, which may result in lapse of the money

sanctioned under the Scheme. It is also noticed that the land in

question is situated in the centre of the village surrounded by the

market and, in such circumstances, such land cannot be termed

as pasture land and it would also not safe for the purpose of

grazing cattle.

22. In view of the above discussion, we are not inclined to

interfere in the impugned order dated 30.3.2021 passed by the

District Collector, Barmer. However, the Gram Panchayat

concerned is directed to construct the Shahid Smarak along with

the boundary wall and erect structure for the National Flag

expeditiously, while using the money sanctioned under the MLA,

Local Area Fund Scheme.

23. The Gram Panchayat is also directed not to use the

allotted land for any other purpose, except for the purpose it has

been allotted. If the allotted land is used for any other purpose,

except for the purpose it is allotted, the Sarpanch of the Gram

Panchayat concerned would be held responsible for the same and

will be subjected to action in accordance with law.

24. With these observations, this writ petition is disposed

of.

(YOGENDRA KUMAR PUROHIT),J (VIJAY BISHNOI),J

ms rathore

Powered by TCPDF (www.tcpdf.org)