Rajasthan High Court - Jodhpur

Murlidhar Khadgawat vs State Of Rajasthan on 18 May, 2023

Bench: Pushpendra Singh Bhati

[2023/RJJD/015384]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 10683/2022

1. Murlidhar Khadgawat S/o Late Shri Om Prakash Khadgawat, Aged About 48 Years, R/o Behind Shiv Mandir Mahaveer Chowk, Chopra Bari, New Lane, Gangashahar, Bikaner (Raj.)

2. Mahadev Khadgawat S/o Late Shri Om Prakash, Aged About 42 Years, R/o 836-G, Mahaveer Colony, Chopra Bari, Near Shiv Mandir, Ward No. 20, Gangashahar, Bikaner (Raj.)

3. Smt. Pana W/o Late Shri Om Prakash, Aged About 76 Years, R/o Mahaveer Colony, Chopra Bari, Near Shiv Mandir, Gangashahar, Bikaner (Raj.)

4. Harish Kumar Khadgawat S/o Late Shri Baijanath Khadgawat, Aged About 49 Years, R/o Khadgawato Ka Mohalla, Behind City Kotwali, Bikaner (Raj.)

5. Shiv Kumar Khadgawat S/o Late Shri Baij Nath Khadgawat, Aged About 56 Years, R/o Khadgawato Ka Mohalla, Behind City Kotwali, Bikaner (Raj.)

6. Smt. Kanchan Devi Khadgawat W/o Late Shri Satyaprakash Khadgawat, Aged About 65 Years, R/o Khadgawato Ka Mohalla, Behind City Kotwali, Bikaner (Raj.)

7. Gopal Khadgawat S/o Late Shri Satyaprakash Khadgawat, Aged About 50 Years, R/o Opposite Acharya Shriram School, Khadgawato Ka Mohalla, Bikaner (Raj.)

8. Jagdish Khadgawat S/o Late Shri Satyaprakash Khadgawat, Aged About 48 Years, R/o 499 Ward No. 13, Opposite Acharya Shriram School, Khadgawato Ka Mohalla, Behind City Kotwali, Bikaner (Raj.)

9. Narayan Khadgawat S/o Late Shri Satyaprakash Khadgawat, Aged About 45 Years, R/o Khadgawato Ka Mohalla, Bikaner (Raj.)

10. Raj Kumar Khadgawat S/o Late Shri Satyaprakash Khadgawat, Aged About 43 Years, R/o Ward No. 13, Khadgawat Street, Bikaner (Raj.)

----Petitioners Versus

1. State Of Rajasthan, Through The Joint Secretary-Ii, Urban Development Department, Ministry Of Urban Development And Housing, Government Of Rajasthan, Jaipur 302005 (Raj.)

2. The District Collector, Bikaner (Raj.)

3. The Secretary, Urban Improvement Trust, Bikaner (Raj.)

4. The Additional Chief Engineer, Public Health And Engineering Department, Bikaner (Raj.)

5. The Sub Divisional Magistrate, Bikaner (Raj.)

[2023/RJJD/015384] (2 of 11) [CW-10683/2022]

----Respondents

For Petitioner(s) : Mr. Sanjeet Purohit For Respondent(s) : Mr. Pankaj Sharma, AAG a/w Mr. Rishi Soni.

Mr. J.L. Purohit, Senior Advocate assisted by Mr. Rajeev Purohit.

Mr. Sheetal Kumbhat

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 15/05/2023 Pronounced on 18/05/2023

1. This writ petition under Article 226 of the Constitution of

India has been preferred claiming the following reliefs:

"It is therefore, most humbly and respectfully prayed that this petition for writ is the nature of Mandamus may kindly be allowed. By an appropriate writ, order or direction:

(i) The communication dated 06.04.2022 (Annex-14) issued by the respondent No.1 may kindly be declared illegal and same may kindly be quashed and set aside.

(ii) The order dated 31.05.2022 (Annex-15) issued by the respondent No.3 may kindly be declared illegal and same may kindly be quashed and set aside.

(iii) The respondent authority may kindly be directed to comply with the order dated 28.08.2004 passed by the learned RAA in its true letter and spirit.

(iv) The respondent authority may kindly be restrained from dispossessing the petitioners or taking over the petitioners' land in question.

(v) The respondent authorities may kindly be restrained from taking any coercive action against the petitioners.

(vi) The respondent authorities may kindly be restrained from utilizing the land of the petitioners for any Government purpose.

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(vii) Any other appropriate order or direction which this Hon'ble Court deems fit and proper may kindly be passed in favour of the petitioners.

(viii) Cost of the writ petition may kindly be awarded to the petitioners."

2. Brief facts of the case, as placed before this Court by learned

counsel for the petitioners, are that the ancestors of the

petitioners and other family members were allotted land of Chak

No. 496-150 (RDL), Chak No. 493-350 (RDL), Chak No. 496-402

(RDL) in total 152 bighas at Village Sharah Kunjia, Tehsil & District

- Bikaner in Vikram Samvat 1980 (Year -1923), by the erstwhile

Princely State of Bikaner.

2.1. After commencement of the Rajasthan Tenancy Act, 1955

and by virtue of the provisions contained in Section 15 AAA

thereof, the ancestors of the petitioners and other family members

continued to be the recorded Khatedars of the land in question.

2.2. The Department of Irrigation and Colonization vide

notification dated 21.12.1958, while exercising the power under

Clause-11 of Section 2 of the Rajasthan Colonization Act, 1954

notified that the provisions of the said Act shall apply to Village

Sarah Kunjiya. Therefore, the land in question came under the

Colonization Department. But de hors the provisions of law, the

Assistant Colonization Commissioner, Bikaner vide order dated

24.11.1976, recorded the land in question as Arajiraj.

2.3. Thereafter, against the aforesaid order dated 24.11.1976

passed by the Assistant Colonization Commissioner, the petitioners

and other family members preferred an appeal (registered as

Appeal No. 23/01) before the learned Revenue Appellate Authority

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(RAA), Bikaner. The learned RAA vide the judgment dated

28.08.2004 quashed the order dated 24.11.1976 and remanded

the matter to the learned Sub-Divisional Officer (North) (SDO),

Bikaner for deciding the matter, within a period of three months

from the date of judgment, afresh, after giving an opportunity of

hearing to all the parties concerned.

2.4. In compliance of the aforesaid judgment dated 28.08.2004

passed by the learned RAA, the leaned SDO registered a case

bearing Revenue Application No.163/2006. The learned SDO

thereafter, vide order dated 11.06.2009 decided the application,

while directing the Tehsildar (Revenue), Bikaner to make entries in

the revenue records in favour of non-applicants therein, namely,

Asha w/o Magharam, Kalu Ram s/o Magharam, Heeralal s/o

Magharam, Bulakiram s/o Magha Ram, Dwarka Prasad s/o

Annaram and Sukhdev s/o Mohanlal, as per their respective share

in the land in question; vide the said order, the other persons,

including the petitioners were granted liberty to claim their

khatedari rights by way of filing revenue suit(s) separately.

2.5. In the year 2011, the District Collector, Bikaner directed to

record the land in question in favour of respondent- Urban

Improvement Trust (UIT), Bikaner.

2.6. Thus, being aggrieved by the aforesaid order passed by the

District Collector, Bikaner, whereby the benefit in the form of

khatedari rights accruing out of the order dated 11.06.2009

passed by the learned SDO were denied to the petitioners' family,

an appeal (registered as Appeal No.07/2017) was preferred before

the learned RAA, and that, the petitioners along with other family

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members, in view of the aforesaid liberty so granted by the

learned SDO vide order dated 11.06.2009, also filed a separate

Revenue Suit (registered Revenue Suit No.21/2018) before the

leaned SDO, Bikaner, wherein the interim of status quo order was

passed on 18.06.2018.

2.7. Subsequently, the Joint Secretary-II vide the impugned

communication dated 06.04.2022 granted permission to the

Secretary UIT, Bikaner to proceed with allotment of land in

question to the respondent-Public Health & Engineering

Department (PHED). In furtherance of the said communication,

the Secretary UIT, Bikaner vide the impugned order 31.05.2022

has allocated various Chunks of land including the land in question

(Chak 496 RD (L), Chak-1 BSM and BKM) to the PHED.

2.8. Thus, being aggrieved by the aforementioned communication

dated 06.04.2022 and the impugned order dated 31.05.2022, the

present petition has been preferred claiming the afore-quoted

reliefs.

3. Learned counsel for the petitioners submitted that the

petitioners and their family members have been enjoying peaceful

possession of the land in question for last many years, and

therefore, now the respondent-PHED is trying to forcefully take

possession of the land in question from the petitioners, which is

highly illegal and arbitrary.

3.1. Learned counsel further submitted that the land in question

erroneously stood recorded as Arajiraj land by the aforementioned

order dated 24.11.1976 passed by the Assistant Colonization

Commissioner, Bikaner, but the said order was quashed by the

[2023/RJJD/015384] (6 of 11) [CW-10683/2022]

learned RAA vide the aforesaid judgment dated 28.08.2004, while

remanding the matter to the learned SDO, as above. As per

learned counsel, despite of the above, the impugned

communication and the impugned order were issued by the

respondent authorities without even complying with the principles

of natural justice.

3.2. Learned counsel also submitted that the petitioners gave

various representations to the District Collector, Bikaner and UIT,

Bikaner for recording the land in question as Khatedari land in

favour of the petitioners, but instead of doing so, the respondents

have taken the impugned action. It was further submitted that the

petitioners and their family members have been in peaceful

possession of the land in question for so long, and thus, on that

count, amongst others, the impugned action of the respondents is

unsustainable in the eye of law.

4. On the other hand, Mr. J.L. Purohit, learned Senior Counsel

assisted by Mr. Rajeev Purohit; Mr Pankaj Sharma, learned

Additional Advocate General assisted by Mr. Rishi Soni; and Mr.

Sheetal Kumbhat appearing on behalf of the respondents, while

opposing the aforesaid submissions made on behalf of the

petitioners, submitted that land in question and certain lands of

Khasra nos.10, 11, 12, 13, and 14 of Village Sarah Kunjiya were

recorded as Arajiraj lands. The learned SDO vide the

aforementioned order dated 11.06.2009, while giving directions to

make entries in the revenue records in favour of six persons only,

excluded the other persons including the petitioners, as the

excluded persons did not approach the learned RAA at the

[2023/RJJD/015384] (7 of 11) [CW-10683/2022]

relevant time; therefore the remaining lands were stood Arajiraj

lands.

4.1. It was further submitted that the land in question was

mutated and vested in the name of respondent-UIT and the same

vide the impugned order dated 06.04.2022 was allotted to

respondent-PHED, with the prior approval of the State

Government; therefore the petitioners do not have any right and

title in respect of the land in question.

4.2. It was also submitted that the respondent-PHED, in lieu of

such allotment, paid a sum of Rs.30,12,85,602/- at DLC rates to

the respondent-UIT, and the respondents are carrying a large

public project related to Water Conservation and Water Supply

Project for Bikaner City and 32 nearby Villages. It was further

submitted that the respondents also allocated a budget of

Rs.614.92 crore in the year 2019-20. It was also submitted that

the various work packages related to the project are already

issued by the respondents.

4.3. It was further submitted that the petitioners did not file any

suit claiming the khatedari rights and they not even participate in

the proceeding before the learned SDO, at the relevant time. The

land vested in respondent- UIT vide notification dated 21.08.2001

was validly allotted to the respondent-PHED. It was also submitted

that the remedy of challenging such allotment made by the

respondent-UIT is available in the form of statutory remedy, and

thus, this petition is not maintainable.

4.4. During the course of hearing, the learned counsel for

respondents however categorically submitted that in case, the

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petitioners file a suit before the competent authority in future and

succeed therein, and their lawful khatedari rights are created

thereby, in respect of the land in question, then the respondents

would allot the petitioners an alternate land, as compensation,

strictly in accordance with law.

4.5. In support of their submissions, they relied upon the

judgment rendered by the Division Bench of this Hon'ble Court in

the case of Narendra Singh Bhati & Ors. Vs State of

Rajasthan & Ors (D.B. Civil Writ Petition No. 6195 of 2020,

decided on 11.01.2023); relevant portion whereof reads as under:

"8. Shri Sunil Beniwal, learned AAG representing the State authorities, urged that the allotment of land in question has been made to PGCIL, a Government of India undertaking which has already started construction of the gird sub station which is a project of national importance and would subserve the power requirements by transmitting Solar Energy. This grid sub station is being established to harness the electricity generated from the solar farms/ projects being set up in Western Rajasthan. The purpose of setting up the grid sub station has great sanctity and importance. ........ ......

.....

In order to ensure smooth transmission of clean and green electricity generated from the solar power plants of national and universal importance, grid stations would be required.

Hence, the purpose of the allotment in question is very pious and has great sanctity because it facilitates installation of the grid station which is essential for onward transmission of green energy which is the need of the hour. Use of fossil fuels and other similar sources for generating energy are creating havoc upon the earth's atmosphere because greenhouse gases are emitted as a result which contribute to global warming. The disastrous consequences of this evil phenomenon are impacting the entire population of this world. Hence, each

[2023/RJJD/015384] (9 of 11) [CW-10683/2022]

miniscule attempt to bring about reduction in emission of green house gases has to be encouraged at every cost. The efforts of harnessing solar power to generate electricity is one such laudable effort which has to be appreciated and nurtured.

13. A perusal of the impugned order of allotment (Annexure-4) dated 28.08.2019 which is assailed in this writ petition, would reveal that initially when the proposal to establish the grid sub station was received, the SDO, Bap made an enquiry and forwarded the recommendation with the NOC letter dated 02.05.2019 to the District Collector, Jodhpur. The Tehsildar, Bap also forwarded a recommendation to the District Collector as per which, it was proposed to declassify 451 Bighas of land from Khasra No.491 (Gair Mumkin Magra) for compensating the reduction in the Gochar area on account of proposed allotment to the PGCIL. Acing on these recommendations, the District Collector forwarded the matter to the State Government for approval vide letter dated 21.05.2019. The State Government thereafter, issued an order dated 12.07.2019 approving the proposal of the District Collector and directed declassification of 451 Bighas (73 Hectares) land from the pasture area of Khasra No.240 and at the same time, land of equal dimension from Khasra No.491 was allotted for compensating the Gochar land. As mentioned supra, the total available pasture area after the allotment in question, is 15 times of the requirement as per Rule 6 of the Rules of 1955. Apparently thus, the mandate of the Rules has been duly satisfied. Resultantly, the allotment order in question cannot be held invalid on account of non-compliance of any provision of the Rules of 1955 so as to call for interference of this Court in this public interest litigation writ petition."

5. Heard learned counsel for the parties as well as perused the

record of the case along with judgment cited at the Bar.

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6. This Court observes that the respondent- UIT vide impugned

order approved the allotment of 243.16 Bighas comprising Chak

496 (RDL), Chak 1-BSM and 3-BKM to respondent- PHED for water

supply public project (as per earlier revenue records, comprised in

Khasra No.10 (70 Bigha 03 biswas), Khasra No.11 (80 Bigha 09

biswas), Khasra No.12 (171 Bigha 02 biswas), Khasra No.13 (139

Bigha 09 biswas), and Khasra No.14 (152 Bigha) - in total 613

Bighas of village Sharah Kunjiya, Distt- Bikaner).

7. This Court further observes that the learned SDO vide order

11.06.2009 directed making of the revenue entries of khatedari

rights in favour of 6 persons only, while the remaining persons,

including the present petitioners, were only given liberty to file a

separate suit for claiming their khatedari rights. The persons

having khatedari rights are not in conflict in the present writ

petition and the other persons, who were given liberty, have not

established any final rights over the land in question, and

therefore, have no right to contest this lis.

8. This Court also observes that the land in question was vested

in the respondent-UIT on 21.08.2001 and the same was further

transfer to the respondent-PHED for public projects. The

respondent-PHED is carrying a huge public project of water

conservation and water supply for Bikaner City and 32 nearby

villages, and for the purpose of the said projects, the respondent-

PHED allocated various packages.

9. This Court further observes that the aforesaid projects are

projects of public importance, as the same would provide huge

water facility to the residents of Bikaner city and nearby villages;

[2023/RJJD/015384] (11 of 11) [CW-10683/2022]

the huge amount has already been sanctioned by the State

Government as well as respondent-PHED for the said purpose.

Therefore, the land in question was clearly recorded in the name

of respondent -UIT and further lawfully transferred to the

respondent -PHED for undertaking the projects of the larger public

interest. Thus, such public projects cannot be stopped under any

circumstances whatsoever.

10. This Court observes that the petitioners have granted the

liberty to file a suit by learned SDO regarding the claim of

khatedari rights in respect of the land in question, but despite the

same, for a long time, the petitioners did not avail any remedy, as

provided under the law, for claiming their khatedari rights in the

land in question, and thus, have lost every claim whatsoever on

this land.

11. In light of the above observations and the judgment

rendered in Narendra Singh Bhati (Supra) as also looking into

the factual matrix of the present case, this Court does not find it a

fit case so as to grant any relief to the petitioners in the present

petition.