Rajasthan High Court - Jodhpur

Jabar Singh vs State Of Rajasthan on 21 September, 2023

Bench: Nupur Bhati

[2023:RJ-JD:29769]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 16464/2021

1. Jabar Singh S/o Panne Singh, Aged About 70 Years,
Resident Of Village Thakar Kheda, Post Majal, Tehsil
Samdadi, District Barmer.
2. Smt. Sagar Kanwar W/o Prithvi Singh, Aged About 42
Years, Resident Of Village Thakar Kheda, Post Majal,
Tehsil Samdadi, District Barmer.
----Petitioners
Versus
1. State Of Rajasthan, Through Secretary, Department Of
Rural Department And Panchayati Raj Jaipur.
2. District Collector, Barmer.
3. Chief Executive Officer, Zila Parishad Barmer.
4. Vikas Adhikari, Panchayat Samiti Samdadi, District
Barmer.
5. Sarpanch, Gram Panchayat Thakar Kheda, Panchayat
Samiti Samdadi, District Barmer
----Respondents

For Petitioner(s) : Mr. Moti Singh
For Respondent(s) : Mr. Manish Patel
Mr. Manish Tak

HON'BLE DR. JUSTICE NUPUR BHATI

JUDGMENT

     Judgment Reserved on                              <>               14/09/2023
     Date of Pronouncement                             <>               21/09/2023
Reportable

1. The present writ petition has been filed by the petitioners

under Article 226 of the Constitution of India with the following

prayers:-

"A. By an appropriate writ, order and direction may kindly be issued and the proposal dated 20.08.2020 (Annexure-3) taken by the Gram Panchayat may kindly be declared forged and fabricated.

(D.B. SAW/837/2023 has been filed in this matter. Please refer the same for further orders)

[2023:RJ-JD:29769] (2 of 13) [CW-16464/2021]

B. By an appropriate writ, order and direction may kindly be issued and the order dated 21.11.2020 (Annexure-7) passed by District Collector, Barmer, basis on the proposal of the Gram Panchayat may kindly be declared illegal, arbitrary and against the settle preposition of law and the same may kindly be quashed and set aside.

C. By an appropriate writ, order and direction may kindly be issued and the financial and administrative sanction dated 22.04.2021 (Annexure-8) issued by District Programme Convener Zila Parishad Barmer may kindly be quashed and set aside.

D. That any other relief, which this Hon'ble Court deems fit to protect and maintained the healthy judicial system in State of Rajasthan, by which the petitioner may get full justice may also be allowed."

2. Brief facts of the case are that this petition has been filed

against the recommendation dated 20.08.2020 and proposal sent

by Tehsildar Samdadi on 13.10.2020 with regard to allotment of

the land of Khasra No.592 of village Thakar Kheda, reserved as

Gair Mumkin Gochar.

3. That before 16.11.2019 the village Majal and Thakar Kheda

both are part of the Panchayat Circle of Gram Panchayat Majal. On

12.06.2019, the Government of Rajasthan issued a notification

while exercising the statutory power of Panchayati Raj Act, 1994

and directed to reconstitute the Panchayat Circle of entire

Rajasthan.

4. According to the notification dated 12.06.2019, the District

Administration, Barmer prepared a proposal for reconstitution of

Gram Panchayat Majal and the same was sent to the State

Government with a recommendation for constituting a new Gram

Panchayat for village Thakar Kheda, which was earlier a part of

Gram Panchayat Majal. The District Committee further

(D.B. SAW/837/2023 has been filed in this matter. Please refer the same for further orders)

[2023:RJ-JD:29769] (3 of 13) [CW-16464/2021]

recommended that a headquarter will be established at the Village

Thakar Kheda. The Committee also recommended that a

Panchayat Building will be constructed within the limit of 3 kms

from village abadi. According to the proposal, the State

Government issued a notification on 16.11.2019 and a new Gram

Panchayat was constituted namely Thakar Kheda and the Village

Thakar Kheda and Dev Nagar, were included in the newly

constituted Gram Panchayat. Thereafter, election of the Panchayat

Body was held in the month of September, 2020 and the voters of

Panchayat Circle elected the petitioners as panchas from different

wards of Gram Panchayat Thakar Kheda.

5. A land of Khasra No.592 Rakba 65.03 Bigha of Village Thakar

Kheda was reserved as Gair Mumkin Gochar and in the year 2010,

a land of 1.10 Bigha was set apart as a Gair Mumkin Shamshan,

as the old Shamshan was already existing in the nearby Nadi. The

land of Khasra No.592 is a catchment of the water body/pond

situated at Khasra No.591 of village Thakar Kheda and the water

flow of Khasra No.591 also comes from Khasra No.592. The said

maps are placed on record as Annexure-1 & 2, respectively.

6. The issue with regard to construction of the Panchayat

Bhawan of Gram Panchayat Thakar Kheda, was dealt in a fraud

and fabricated manner and the Sarpanch of Gram Panchayat

prepared a forged proposal with the signature of the petitioner

Sagar Kanwar, however, there was no notice for the general

meeting and when the said meeting was held, at that time,

guidelines and restrictions of COVID-19 pandemic, were imposed

by the Government of Rajasthan and thus, the meeting could not

be held.

(D.B. SAW/837/2023 has been filed in this matter. Please refer the same for further orders)

[2023:RJ-JD:29769] (4 of 13) [CW-16464/2021]

7. According to the proposal, the land which is a part of

catchment and water flow of the pond/water body, was selected

and was proposed as a part of Khasra No.592, which is situated at

7 kms distance from the village Abadi Circle as well as other public

utility buildings i.e. School, Anganwadi, Sub-health Centre,

Sahakari Samiti Offce etc. of village Thakar Kheda.

8. According to the proposal of the Gram Panchayat and the

report of Patwari, Patwari Majal on 09.09.2020, prepared a site

report of Khasra No.592 and recommended that a land of Khasra

No.796, will be given as a compensation of the pasture and

thereafter, the Tehsildar Samdari sent a recommendation to the

Sub-Division Officer, Siwana. The learned District Collector vide

order dated 21.11.2020 (Annexure-7), passed an allotment order

from Khasra No.592 Rakba 2.10 Bigha (One Acre) under the

provision of Rajasthan Land Revenue (Construction of School,

College, Hospital, Dharamshala and other Public Utility Building)

Condition, 1963 and in pursuance of the order dated 21.11.2020

(Annexure-7), the District Programme Coordinator issued a

financial and administrative sanction to the tune of Rs.43,96,000/-

for construction of the Panchayat Bhawan on 22.04.2021

(Annexure-8).

9. On 15.11.2021, the contractor started the work upon the

land of Khasra No.592 and on nearby pond situated at the land of

Khasra No.591 & 592. The petitioners made a query about the

ongoing work and the contractor informed them that the land has

been allotted according to the proposal of the Gram Panchayat for

construction of Panchayat Bhawan. The petitioners obtained a

copy of the proceedings as well as entire file from the office of

(D.B. SAW/837/2023 has been filed in this matter. Please refer the same for further orders)

[2023:RJ-JD:29769] (5 of 13) [CW-16464/2021]

Tehsildar Samdari on 15.11.2021 and then, they came to know

that a meeting was held on 20.08.2020 in absence of the

petitioner No.1 and forged signature of petitioner No.2 were taken

on the document. Thereafter, the petitioner No.2 submitted a

report to the Police Station Samdari (Annexure-10) and lodged a

criminal case against the Sarpanch of Gram Panachayat and other

members.

10. The petitioners also submitted a representation (Annexure-

11) to the District Collector, Barmer and the Chief Executive

Officer, Barmer for cancellation of the order dated 21.11.2020 as

well as sanction issued by the Zila Parishad dated 22.04.2021, but

no heed was paid to the petitioners by the Sarpanch and the Gram

Vikas Adhikari, as the proposal of building Gram Panchayat

Bhawan on the said land in question was sent without putting up

the matter before the General Meeting of the Gram Panchayat.

11. Being aggrieved of the proposal dated 20.08.2020

(Annexure-3) and the order dated 21.11.2020 (Annexure-7)

issued by the District Collector, Barmer and the sanction issued by

the Zila Parishad, Barmer dated 22.04.2021 (Annexure-8), the

petitioners have preferred the present writ petition.

12. Learned counsel Mr. Moti Singh, appearing for the petitioner

submitted that:-

(a) The proposal sent by the Sarpanch and Gram Vikas Adhikari,

was not based upon any decision of the Gram Panchayat and the

signatures of the petitioner No.2 have been forged upon the said

proposal and thus, the impugned orders deserve to be quashed

and set aside.

(D.B. SAW/837/2023 has been filed in this matter. Please refer the same for further orders)

[2023:RJ-JD:29769] (6 of 13) [CW-16464/2021]

(b) Prior to taking the said proposal, there was no notice served

upon the elected Panch and the petitioner No.1 was never

intimated by the Office of the Gram Panchayat for the meeting

that was held.

provision of "Rajasthan Land Revenue Condition for (Allotment of

Unoccupied Govt. Agricultural Lands for the Construction of

Schools, Colleges, Dispensaries, Dharamshalas and other building

of public utility), 1963" (hereinafter referred to as "the Conditions

of 1963). As per Clause No.4 of the Conditions of 1963, the

Allotting Authority is the Sub Divisional Officer having jurisdiction

to allot the land in question for the purpose of construction of

Panchayat Ghar, however, in the present case, the District

Collector has passed the impugned order dated 21.11.2020 vide

allotting a piece of land from Khasra No.592 Rakba 2.10 Bigha. As

per Clause No.1 of the Conditions of 1963, the land in question

could not have been allotted for the purpose of Panchayat Ghar, as

it was a catchment area which is evident from the Jamabandis and

Revenue Maps, (Annexure-1) and (Annexure-2).

(d) The land in question is a part of catchment area of the pond/

water body which is situated at Khasra No.591 of Village Thakar

Kheda.

(e) The land in question which is a part of Khasra No.592, is

situated at a distance of about 7 kms from the village Abadi

circular and other Public Utility Buildings, Schools, Aanganwadi,

Health Centers, Sahakari Samiti Office of Village Thakar kheda and

thus, the same cannot be said to be in the interest of the

residents of the said village.

(D.B. SAW/837/2023 has been filed in this matter. Please refer the same for further orders)

[2023:RJ-JD:29769] (7 of 13) [CW-16464/2021]

(f) The impugned order dated 21.11.2020 (Annexure-7) passed

by the District Collector, Barmer, deserves to be quashed and set

aside, as it has been passed in grave violation of the conditions of

1963, as under Clause No.4 of the Conditions of 1963, the

jurisdiction for allotment of the land for the Panchayat Bhawan

rests with the Sub-Divisional Officer, however, in the present case,

the land in question has been allotted by the District Collector,

Barmer.

(g) In accordance with Clause No.1(1) of the Conditions of 1963,

any unoccupied Government land except land recorded as

catchment land, may be allotted for any of the purpose as

mentioned in Clause (2) and as the present land in question being

a part of catchment area could not have been allotted by the

respondents authorities.

(h) As per Clause No.2 of the Conditions of 1963, the land for

the construction of Panchayat Ghar can be allotted for one acre

area only and if the land is of the nature of pasture, then the

provision of Rule 7 of the Rajasthan Tenancy (Government) Rules,

1955 (hereinafter referred to as "the Rules of 1955), is required to

be followed. The Gram Panchayat sought the area of 3 acre land

and the same could not have been allotted by the District

Collector, Barmer, without prior approval of the State Government.

(i) The change of the classification of pasture land shall have to

be processed according to the rule, as there is a clear provision

that where the land is required for government offices and

buildings and unoccupied culture level, government land is not

available in the same village and the necessity is an absolute

necessity and in the absence of any alternative means, an equal

(D.B. SAW/837/2023 has been filed in this matter. Please refer the same for further orders)

[2023:RJ-JD:29769] (8 of 13) [CW-16464/2021]

area of the unoccupied culture level land may be set apart in

exceptional cases, however, in the present case, huge chunk of

land which is recorded as Reteeli (रे तीली) land in the village

boundaries are available.

(j) The respondents have not complied with the provisions of

Rule 7 of the Rules of 1955, as the Collector was required to take

prior permission of the State government for the purpose of

allotment on setting apart of the pasture land as in the instant

case, no such permission of the State government has been taken

for the purpose of setting apart of the pasture land in question.

(k) Apparently, the land in question is a catchment area as it is

adjoining Khasra No.591 of Village Thakar Kheda and the water

flows from Khasra No.592 which is reflected from the revenue

map and a Jamabandi placed on record as (Annexure-1 and 2),

respectively.

13. Learned counsel for the respondents Mr. Manish Patel and Mr.

Manish Tak, jointly submitted that:-

(a) The petitioner has not set up a case in the writ petition that

the respondents have not adhered to the Clause 4 of the

Conditions of 1963, as in the pleadings, it has nowhere been

submitted that the District collector does not have the authority or

the power to allot the land and the land in question could be

allotted by Sub-Division Officer and thus, the petitioners'

contention that the respondents have not adhered to Clause 4 of

the conditions of 1963 may not be accepted by way of oral

submissions.

(b) In the Conditions of 1963, it has been specifically laid down

that if the land is recorded as pasture land and is required to be

(D.B. SAW/837/2023 has been filed in this matter. Please refer the same for further orders)

[2023:RJ-JD:29769] (9 of 13) [CW-16464/2021]

allotted, then the procedure as laid down in Rule 7 of the

Rajasthan Tenancy (Government) Rules, 1955 shall be followed.

1955, the Collector is empowered or competent with the purpose

of allotment on setting apart the pasture land.

(d) The Sub Divisional Officer is only authorized for allotment of

the land which is not reserved land and therefore, the provision

has been inserted in the Clause 1 of the Conditions of 1963 and

power has been conferred to the District collector only for

allotment or setting apart the pasture land.

(e) The petitioners who are the elected Panchas of the Gram

Panchayat, did not raise any objection at the time when the

resolution was passed in the meeting which was held on

20.08.2020. The said meeting with the resolution was passed and

the petitioners had also put in their signatures.

(f) On 10.03.2021 even a special Gram Sabha was called for the

purpose of calling objections on the said resolution so passed by

the Gram Panchayat, however, the petitioners did not raise any

objection at the time even when they had an opportunity.

(g) The petitioners have not placed any document in order to

show that the land in question is a catchment area and the

petitioners have misled the court while submitting on 10.03.2021

before this Court that the said land is a part of the catchment area

of Village Pond situated at land in question.

(h) The said land in question has been mutated in favour of the

current Gram Panchayat Thakar Kheda and the Jamabandi dated

10.03.2021 has also been placed on record as Annexure-R/1 and

the petitioner has not challenged the said mutation entry in the

(D.B. SAW/837/2023 has been filed in this matter. Please refer the same for further orders)

[2023:RJ-JD:29769] (10 of 13) [CW-16464/2021]

revenue records and thus, the present writ petition is not

maintainable on this ground itself.

(i) Since more than 75% of the Abadi is situated near the land

in question including the middle school, thus, the said allotment of

the disputed land in question has been made looking to larger

interest of the residents of the village.

(j) A tender proceeding had been initiated by the government

for supplying the material and thereafter, one firm had been

selected for supplying the material which had duly been supplied

and thereafter, an amount of Rs.4,00,000/- had also been

released in their favour for the work completed to that extent,

which is placed on record as Annnexure-R/3.

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

material available on record.

15. This Court finds that the petitioners in their pleadings as well

as in the prayer have not set up a case that under Clause No.4 of

the Conditions of 1963, the District Collector is not empowered to

allot the land in question and the land in question ought to have

been allotted by the Sub-Divisional Officer, therefore, the said

submission of the petitioner cannot be accepted by way of making

oral submissions and setting up a different case then, what has

been pleaded in the writ petition.

16. As far as the contention of the learned counsel for the

petitioners that the land in question is a part of the catchment

area is concerned, the same is devoid of any merit, as the

petitioners have not demonstrated before this court by way of any

document that the land in question was a part of the catchment

(D.B. SAW/837/2023 has been filed in this matter. Please refer the same for further orders)

[2023:RJ-JD:29769] (11 of 13) [CW-16464/2021]

area. The revenue record which is placed on record, very clearly

reflects that the land in question is a pasture land.

17. The contention of the learned counsel for the petitioner that

Rule 7 of the Rules of 1955 has not been adhered, is also not

acceptable as the provision of Rule 7, clearly reflects that if the

land is proposed to be allotted for the purpose of government

office or government building then, the prior permission of the

State Government is not required for change of classification of

the pasture land and thus, it cannot be said that the District

Collector, Barmer, while passing the order dated 21.12.2020

(Annexure-7) has failed to adhere to the provision of Rule 7 of the

Rules of 1955. Rule 7 of the Rules of 1955 is reproduced

hereunder:-

"7. Allotment or setting apart of pasture land. (1) The Collector may, in consultation with the Panchayat, (after obtaining prior permission of the State Government) change the classification of any pasture land, as defined in sub- section (28) of Section 5 of the Act or any pasture land set- apart under Section 92 of the Rajasthan Land Revenue Act, 1956 (Rajasthan Act 15 of 1956), as unoccupied culturable Government land (Sawal Chak), for allotment for agricultural or any non-agricultural purposes:

{Provided that prior permission of the State Government is not required for change of classification of pasture land where such land is proposed to allot for the purpose of the Government Office or Government Buiding, [...]}"

18. Also under Clause 1 of the Conditions of 1963, the proviso

specifically lays down that for the purpose of allotment of pasture

land, the procedure as laid down in Rule 7 of the Rules of 1955,

shall be followed and the respondents while allotting the land in

question, which is duly recorded as pasture land in the revenue

record, have followed the procedure laid down in Rule 7 of the

(D.B. SAW/837/2023 has been filed in this matter. Please refer the same for further orders)

[2023:RJ-JD:29769] (12 of 13) [CW-16464/2021]

Rules of 1955, as discussed above. Clause 1 of the Conditions of

1963 is reproduced hereunder:-

"[1. Class of land to be allotted. - Any unoccupied Government land may be allotted for any of the purposes mentioned in clause 2. if the allotting authority is satisfied that no suitable un-culturable land is available.] Provided that if land recorded as pasture (Gochar) is to be allotted, the procedure of consultation with panchayat as laid down in Rule 7 of the Rajasthan Tenancy (Government) Rules, 1955 framed under the Rajasthan Tenancy Act, 1955 (Act 3 of 1955) shall be followed:

Provided further that lands which are irrigated by any source or are recorded as public path, beds of river or tank shall not be allotted without prior approval of the State Government:

Provided also that no allotment shall be made without prior consultation of Town Planning Department in case of cities and towns for which Master Plan has been approved or is under preparation."

19. This fact cannot also be ignored that the petitioners had an

opportunity to raise objection when a special Gram Sabha was

called on 10.03.2021 (Annexure-R/1) inviting objections upon the

resolution under challenge dated 20.08.2020, but the petitioners

chose to remain silent and did not raise any objection whatsoever.

20. This Court is not inclined to grant indulgence to the

petitioners in the instant case for the reason that the petitioners

have failed to demonstrate before the court that the land in

question is a part of the catchment area and also that the

provisions of Rule 7 of the Rules of 1955 were not adhered by the

respondents while allotting the land in question for construction of

the Gram Panchayat Bhawan.