State Of Rajasthan vs Keshar Singh ...
2023 Latest Caselaw 8644 Raj

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Writ Misc Application No. 249/2022 in D.B. Civil Writ Petition No.2422/2021

1. State of Rajasthan through the Principal Secretary, Rural Development and Panchayati Raj Department, Government of Rajasthan, Jaipur, Rajasthan

2. District Collector Udaipur, District Udaipur, Rajasthan.

3. Zila Parishad Udaipur, through Chief Executive Officer, Udaipur, District Udaipur, Rajasthan.

4. Sub Divisional Officer, Girwa, District Udaipur, Rajasthan.

5. Tehsildar Girwa, Tehsil Girwa, District Udaipur, Rajasthan.

----Applicants/Non-petitioners Versus

1. Keshar Singh S/o Ratan Singh, aged about 57 years, R/o Village Vasu, Patwar Circle Dantisar, Tehsil Girwa, District Udaipur, Rajasthan.

2. Gendi Devi W/o Shri Logar Lal, aged about 27 years, R/o Village Vasu, Patwar Circle Dantisar, Tehsil Girwa, District Udaipur, Rajasthan. (Presently Sarpanch, Gram Panchayat Vasu, Panchayat Samiti Kurabad, Tehsil Girwa, District Udaipur).

3. Chanda Kanwar W/o Shri Devendra Singh, aged about 43 years, R/o Village Vasu, Patwar Circle Dantisar, Tehsil Girwa, District Udaipur, Rajasthan.

4. Kura S/o Shri Roda Ji, aged about 65 years, R/o Village Vasu, Patwar Circle Dantisar, Tehsil Girwa, District Udaipur, Rajasthan.

5. Devi Lal Meena S/o Shri Khuma Lal Meena, aged about 52 years, R/o Village Vasu, Patwar Circle Dantisar, Tehsil Girwa, District Udaipur, Rajasthan.

6. Valla S/o Shri Khuma Ji, aged about 50 years, R/o Village Vasu, Patwar Circle Dantisar, Tehsil Girwa, District Udaipur, Rajasthan.

7. Rupa S/o Shri Manna Ji, aged about 48 years, R/o Village Sari/aairi Falan, Gram Panchayat Vasu, Patwar Circle Dantisar, Tehsil Girwa, District Udaipur, Rajasthan.

----Non-Applicants/writ-petitioners

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For Petitioner(s) : Mr. Sunil Beniwal, AAG with Mr. Utkarsh Singh.

For Respondent(s) : Mr. Sajjan Singh Rathore.

HON'BLE MR. JUSTICE ARUN BHANSALI HON'BLE MR. JUSTICE SAMEER JAIN (THROUGH VIDEO CONFERENCING) Order 18/10/2023

1. This misc. application has been filed by the applicants/non-

petitioners seeking modification of the order dated 15.12.2021

passed by a Coordinate Bench of this Court in D.B. Civil Writ

Petition No.2422/2021.

2. The writ petition was filed by the writ-petitioners in the

nature of Public Interest Litigation assailing the action of the non-

petitioners in raising construction of Panchayat Bhawan for village

Vasu, Patwar Circle- Dantisar, Tehsil Girwa, District Udaipur on the

land comprising in Khasra Nos.1292 and 1293.

3. The Coordinate Bench, after hearing the parties, passed the

following order on 15.12.2021:

"The petitioners have approached this Court by way of this writ petition in the nature of Public Interest Litigation ('PIL') assailing the action of the respondents in making an attempt to raise construction of the Panchayat Bhawan for the Village Vasu, Patwar Circle Dantisar, Tehsil Girwa, District Udaipur on the land bearing Khasra Nos.1292 & 1293. The petitioners have alleged that the parcel of land which has been surrendered for the Panchayat by a private individual who is having vested interest. The area is land- locked and as such, it would not be feasible to raise construction of the Panchayat Bhawan thereupon. In support of this contention, revenue maps have been annexed at Page No.34 of the writ petition.

Shri Sunil Beniwal, AAG appearing for the respondents is not in a position to dispute the fact that as per the revenue record and the maps filed along with the writ petition, the parcel of land which has been surrendered by the private respondent for the Panchayat Bhawan is land-

locked and it would be totally futile to construct Panchayat

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Bhawan on such piece of land because the public would not be able to approach the institution.

In this background, the allotment order (Annexure-2) dated 08.10.2020 is hereby quashed and set aside. The respondents shall identify a suitable alternate parcel of land and allot the same for construction of the Panchayat Bhawan at the earliest.

The writ petition is disposed of in these terms. All pending applications are disposed of."

4. The instant application has been filed on 28.04.2022 with the

submissions that there is no other 'Abadi' land available in village

Vasu, which can be utilized for construction of Panchayat Bhawan

and that insofar as the observations made by the Court that the

land identified for construction of Panchayat Bhawan is land-locked

i.e. approach road/'Rasta' is not available to said land, after

passing of the judgment dated 15.12.2021, land has been

surrender for making provisions for the roads to the subject land

and now proper way is available. Based on the said two facts,

prayer has been made that Panchayat Bhawan of Gram Panchayat

Vasu, may be permitted to be constructed at the allotted land in

question.

5. A reply to the application has been filed by the non-

applicants/writ-petitioners, inter-alia, indicating that another land

comprising Khasra No.2242/1413 ad-measuring 0.54 hectare is

recorded as Government land, upon being surrendered for

construction of Panchayat Bhawan vide mutation dated

28.06.2021. Further submissions have been made that the land in

question is still land-locked, inasmuch as the purported

surrendered land for way ('Rasta') is not linked to the land in

question. The said land is running parallel to the drain and the

proposed land is next to the drain. Further submissions have been

made indicating that the land in question is not appropriate,

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inasmuch as 'Gair Mumkin Nala' (drain) bearing Khasra No.1414 is

situated north of the land, which overflows during rainy season.

6. When this application came up before a Coordinate Bench on

10.01.2023, following order was passed:

"The non-applicant/writ petitioners made a pertinent submission that the entire attempt of getting a Panchayat Bhawan constructed on the disputed khasras is being done to benefit a private colonizer, who is none else but the husband of the Up-Sarpanch. He further submits that even as on date, appropriate approach road is not available for accessing the disputed location thereby to benefit the colonizer, a new road and a bridge to cross adjoining nala has been sanctioned.

Shri Sajjan Singh, learned counsel representing the respondents submits that though financial sanction for construction of Panchayat Bhawan was issued long back, but till date, the Panchayat has not issued any work order. In spite thereof, the private person for whose apparent benefit, the entire exercise is being carried out, has started raising construction on his own personal expenses. He submits that the private colonizer/person who has offered/ surrendered the land, has started raising construction of he Panchayat Bhawan to somehow justify the impugned action. However, the expense thereof has neither been borne nor sanctioned by the Panchayat nor any money has been released towards the construction by the Sarpanch, who is petitioner No.2 in this writ petition.

In view of the facts noted above, we hereby direct the District Collector, Udaipur shall carry out a physical inspection of the area in question. A map shall be prepared showing comparative distances / approach roads of the land being offered by the writ petitioners and the land sanctioned for construction of the Panchayat Bhawan in question. The District Collector, Udaipur shall file an affidavit in support of the inspection report and shall also clarify as to how construction of the building has been commenced and who has borne the expenses thereof."

7. Pursuant to the said order, the applicants/non-petitioners

have produced an additional affidavit sworn by the District

Collector, Udaipur wherein, submissions have been made that by

order dated 22.12.2020 administrative and financial sanction for

construction of Panchayat Bhawan has been issued by the District

Programme Coordinator-cum-District Collector, Udaipur; based on

which the construction of Panchayat Bhawan is at plinth level and

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an amount of Rs.93,300/- has been spent against wages under

MG-NREGA Scheme. Further indications have been made that

looking to the area of the land available, the same can be used for

future development. Qua the land proposed by the non-

petitioners, it has been indicated that looking to area of the land,

future development of other instrumentalities will be constricted.

Further, maps of the land have been produced.

8. The non-applicants/writ-petitioners have filed counter

affidavit to the additional affidavit filed by the District Collector,

inter-alia, indicating that the development work is required to be

undertaken by the Gram Panchayat and on information sought

from the Gram Panchayat, the Gram Panchayat has neither

allotted the work, nor floated tender for the work in question and

the entire exercise has been undertaken by the family members

and husband of Up-Sarpanch, who happens to be a colonizer.

Further submissions have been made that the Gram Panchayat

has passed a resolution in its meeting dated 05.01.2022 proposing

another piece of land, ad-joining Khasra No.2242/1413, however,

the same has not been considered by the non-petitioners under

the influence, as the same would suffice for all purposes.

Allegations have been reiterated that the piece of land was never

proposed by the Gram Panchayat- Vasu as no proposal was sought

and that the order was passed by the State on its own at the

persuasion of the husband of Up-Sarpanch for his personal

benefit.

9. Learned Additional Advocate General made submissions that

as the writ petition was disposed of by observing that as the land

of Panchayat Bhawan was land-locked, the allotment was quashed

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and the non-petitioners were directed to identify a suitable

alternate parcel of land and allot the same for construction of

Panchayat Bhawan at the earliest. However, as now the defect of

the land in question being land-locked, has been taken care by

way of surrender of land in various other Khasra(s), to make

available the approach way/road, the said Panchayat Bhawan and

a culvert has been constructed on the drain ('Nala'), the order

passed by the Court, deserves modification. Further submissions

have been made that no other 'Abadi' land is available for

construction of Panchayat Bhawan and on that count also, the

order requires modification. With reference to the report of the

District Collector, submissions were made that the land in question

is now appropriate for constructing Panchayat Bhawan and,

therefore also, the order requires modification.

10. Learned counsel appearing for the non-applicants/writ-

petitioners vehemently opposed the submissions. It was submitted

that the very fact that present application has been filed, clearly

shows that the State is under influence of the persons, who are

interested in getting the Panchayat Bhawan constructed on the

land in question. It was emphasized that the indications now made

regarding land being available for constructing approach roads and

construction of culvert clearly establishes the case of the writ-

petitioners that the land in question was land-locked and,

therefore, the same couldn't be allotted for the purpose of

construction of Panchayat Bhawan. It was also emphasized that

the submissions made about no other land being available is also

factually incorrect, as has been demonstrated by filing material on

record, as well as the pending proposal with the State, which also

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is not being processed only on account of political considerations.

Counsel stated that though the non-applicants have placed on

record specific material indicating that the purported construction

has taken place dehors the established procedure, wherein the

same could only taken place through Gram Panchayat, after

issuing tender etc., stands established as no rejoinder has been

filed to the said counter affidavit of the non-applicants and,

therefore, the application essentially seeking a review of the order

dated 15.12.2021, deserves dismissal.

11. We have considered submissions made by the counsel for

the parties and have perused the material available on record.

12. The foundation for passing of the order dated 15.12.2021 by

a Coordinate Bench of this Court (to which one of us Hon'ble Mr.

Justice Sameer Jain, was a party) that the land where the

Panchayat Bhawan was sought to be constructed, was land-locked,

as there was no approach road/way available to the said land,

therefore, the allotment order was quashed and set aside and it

was left open for the non-petitioners to identify a suitable

alternate parcel of land and allot the same for construction of

Panchayat Bhawan at the earliest.

13. The said finding of the Court regarding the allotted land in

question being land-locked stands firmly established by filing of

the present application indicating that the land for construction of

road has now been surrendered by various Khatedar(s). The very

fact that the land in question was allotted for construction of

Panchayat Bhawan after being surrendered by a private person

without even determining the status of the land and whether any

approach road to the said land/way is available, clearly reflects

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non-application of mind by the authorities only with a view to allot

a particular piece of land for the obvious reasons. The said fact

was sufficient for the Court to quash the allotment. The

subsequent event, which is in the nature of curing the defect in

the land, which has led to quashing of the allotment, cannot

rectify non-application of mind by the authorities; rather the same

establishes such blatant non-application.

14. So far as the plea regarding 'Abadi' land being unavailable,

the same aspect also cannot be countenanced in view of the fact

that the land comprising Khasra No.2242/1413 is recorded as

Government land and further proposal is pending before the State

Government.

15. Irrespective of the said aspect, the manner in which the

State has proceeded in the matter, which aspect is clearly

discernible from the material produced by the non-applicants/writ-

petitioners in counter affidavit to the additional affidavit filed by

the applicants, which has not been controverted by the applicants,

the present application essentially is only an attempt to seek

rehearing of the matter in the garb of an application seeking

modification, which is impermissible in law.

16. In view of above discussion, there is no substance in the

application seeking modification of the order dated 15.12.2021,

the same is, therefore, dismissed.

                                   (SAMEER JAIN),J                                            (ARUN BHANSALI),J

                                    1-DJ/-









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