Rajasthan High Court
Shri Shantinath Digamber Jain Atishay ... vs The Union Of India on 3 September, 2024
Author: Pankaj Bhandari
Bench: Pankaj Bhandari, Praveer Bhatnagar
[2024:RJ-JP:34195-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. PIL Petition No. 14483/2019
Shankar Lal Son Of Shri Chanda Lal Meena, Aged About 34
Years, Address - Village Anwan, Tehsil Duni, District Tonk.
Occupation - Agriculturist.
----Petitioner
Versus
1. State Of Rajasthan, Through Principal Secretary,
Department Of Revenue, Secretariat, Jaipur.
2. Collector And District Magistrate, Tonk.
3. District Forest Officer, Tonk.
4. Shri Shantinath Digamber Jain Atishaya Kshetra,
Sudershanodaya, Anwan, Through Adhyaksha -
Nemichand Jain Son Of Sh. Babulal Jain, Resident Of Patel
Nagar, Devli, District Tonk.
----Respondents
Connected With
S.B. Civil Writ Petition No. 17/2022
Shri Shantinath Digamber Jain Atishay Shetra, Sudarshan Tirath,
Post Anwa, District Tonk Through Its Secretary, Secretary Pawan
Kumar Jain, S/o Shri Chouth Mal Jain, Aged 51 Years, R/o Shri
Shantinth Digamber Jain Atishay Kshetra, Sudershanodaya,
Anwa. Distt Tonk
----Petitioner
Versus
1. The Union Of India, Through The Additional Secretary,
Forest Department, Vayu Block, 2Nd Floor, Indira
Paryavaran Bhawan, Aliganj, Jorbagh Road, New Delhi -
110003
2. The State Of Rajasthan, Through The Secretary
Administration, Department Of Revenue, Government Of
Rajasthan, Secretariat, Main Building, Bhagwan Das
Road, Jaipur (Raj.) - 302005
3. The Principal Chief Conservator Of Forest, The
Government Of Rajasthan, Aranya Bhavan, Jhalana
Dungari, Jaipur (Raj.) 302004
4. The District Collector, Tonk, Civil Lines, Tonk (Raj.) 304001
(Downloaded on 05/09/2024 at 08:55:35 PM)
[2024:RJ-JP:34195-DB] (2 of 8) [CW-14483/2019]
5. The Tehsildar, Tehsil Deoli, District Tonk (Raj.) 308404
----Respondents
For Petitioner(s) : Mrs. Sudesh Kasana in DBCWP
No.14483/2019
Mr. Mahendra Shah, Sr. Adv. assisted
by Ms. Pragya Seth in SBCWP
No.17/2022
For Respondent(s) : Mr. Tek Chand Sharma, Adv.
Mr. Ravindra Pal Singh, Adv.for
Mr. Neeraj Batra, GC for Respondent
in DBCWP No.14483/2019 and for
Respondent No.2 to 5 in SBCWP
Mr. C.S. Sinha, Adv.with Ms. Kanika
Vadhwani, Adv.for Mr. R.D. Rastogi,
ASG for respondent No.1 in SBCWP
Mr. Mahendra Shah, Sr. Adv.assisted
by Ms. Pragya Seth, Adv.for
Respondent No.4 in DBCWP
HON'BLE MR. JUSTICE PANKAJ BHANDARI
HON'BLE MR. JUSTICE PRAVEER BHATNAGAR
Judgment
Reportable
Reserved on 12/08/2024
Pronounced on 03/09/2024
(Per Pankaj Bhandari, J)
1. Petitioner- Shankar Lal has filed D.B. PIL Petition
No.14483/2019 alleging that respondent No.4 is encroaching upon
Khasra Nos.2145, 2064, 2148 & 2191 situated in village- Anwan,
Tehsil Duni, District Tonk as ghair-mumkin pahad forest land and
for removal of the encroachment. Petitioner- Shri Shantinath
Digamber Jain Atishay Shetra has filed S.B. CWP No.17/2022 with
a prayer that Khasra Nos.2145, 2064, 2148 & 2191 situated in
village- Anwan, Tehsil Duni, District Tonk be regularized in their
favour.
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2. Since both the petitions i.e. DB PIL Petition
No.14483/2019 and SB Civil Writ Petition No.17/22 pertain to
Khasra Nos.2145, 2064, 2148 & 2191, directions were given to list
S.B. CWP No.17/22 alongwith D.B. PIL Petition No.14483/2019.
With the consent of learned counsels for the parties, both the
petitions were heard.
3. Succinctly stated the facts of the case are that
petitioner- Shankar Lal has filed DB PIL Petition No.14483/2019
alleging that respondent No.4 is encroaching upon Khasra
Nos.2145, 2064, 2148 & 2191 which is ghair-mumkin pahad and
are belonging to the Forest Department. The revenue record has
also been annexed with the PIL where the land has been shown as
ghair-mumkin pahad and belonging to the Forest Department.
Petitioner and other villagers gave various representations to the
Collector for removing the encroachment, but no heed was paid to
their representations, whereupon, DB PIL Petition No.14483/2019
was filed. In reply to the petition, Forest Department has stated
that action was taken against respondent No.4 for encroaching
upon various lands and for using the same for non-forest purpose,
for which, an FIR was also lodged against the respondent and
penalty was imposed.
4. Respondent No.4 in their reply has stated that the
statues of Lord Mahaveer Swamy and Lord Parshwanath were
found beneathing the land and since the statues were around 200-
300 years old as per scriptures tenets at Jain Community, such
statues are to be protected and conserved at the same place by
raising construction because such places are holy places and are
termed as 'Atishaya'. It is also pleaded in the reply that the
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disputed khasra numbers are not forest land and no notification
has been issued by the State Government declaring them as forest
land. It is also stated that respondent No.4 has applied to the
Forest Department as well as the Collector for
allotment/requisition of the disputed khasras.
5. It is contended by counsel for the petitioner in DB PIL
Petition No.14483/2019 that respondent No.4 has no right to
make encroachment of ghair-mumkin pahad without seeking
approval of the Forest Department which was entered in the
revenue record as land belonging to the Forest Department. It is
contended that as per the reply submitted by respondent No.4, it
is evident that the disputed numbers have not been allowed in
favour of respondent No.4 and they are the encroachers. It is also
contended that as per the reply of the Forest Department also,
penalty was imposed upon respondent No.4 and even an FIR was
lodged against them. Thus, admittedly, respondent No.4 are the
encroachers of the land belonging to the Forest Department and
the encroachment is required to be removed.
6. It is also contended that adjacent to the disputed
khasra numbers, respondent No.4 is in possession of many khasra
numbers and they are just trying to encroach upon the adjoining
ghair mumkin pahad forest land without any authority of law or
permission from the concerned department. It is further
contended that the petitioner filed the PIL Petition on 26.08.2019
and even though respondent No.4 was aware of the pendency of
the PIL Petition as they were a party to the petition, they have
concealed this fact and filed SB Civil Writ Petition No.17/2022 on
15.12.2021 without mentioning the fact that a PIL with regard to
[2024:RJ-JP:34195-DB] (5 of 8) [CW-14483/2019]
the disputed khasra numbers is already pending. It is contended
that the writ petition filed by Shri Shantinath Digamber Jain
Atishay Shetra deserves to be dismissed on this ground alone. It is
also required to be dismissed as Shri Shantinath Digamber Jain
Atishay Shetra has no right to encroach upon ghair-mumkin pahad
which is entered in the revenue record as forest land.
7. Counsel for Shri Shantinath Digamber Jain Atishay
Shetra has opposed the petition. It is contended before the Court
that religious feelings should be taken note of by the Court, more
particularly, when the idols of Lord Mahaveer Swamy and Lord
Parshwanath were discovered upon digging of the mountain. It is
contended that there is no notification issued declaring the
disputed khasras as forest land. It is also contended that they
have applied to the Collector for allotment/regularisation of the
disputed khasra numbers. It is also contended that Shri
Shantinath Digamber Jain Atishay Shetra earlier filed a writ
petition bearing No.1528/2021, wherein the fact of filing of the PIL
petition was mentioned. The said writ petition was disposed of by
the Court and Tehsildar, Duni District Tonk was directed to
immediately respond to the Collector's letter dated 21.07.2020
and Collector, Tonk was at liberty to proceed thereafter on the
application of the petitioner in accordance with law. It is also
contended that in the Civil Writ Petition No.1528/2021, petitioner
had claim requisition of the disputed khasra numbers and
Collector had written to the Tehsildar vide communication dated
21.07.2020 to act upon the representations given by Shri
Shantinath Digamber Jain Atishay Shetra.
[2024:RJ-JP:34195-DB] (6 of 8) [CW-14483/2019]
8. It is contended that petitioner in Writ Petition
No.17/2022 has not concealed any material fact and since statues
have been recovered from the disputed khasra numbers by
digging of the mountains as per religious tenets temple is to be
constructed at the same place.
9. We have considered the contentions.
10. The fact which is emerging out of the pleadings and the
arguments advanced by counsel for the parties is that khasra
numbers- 2145, 2064, 2148 & 2191 does not belong to
respondent No.4. As per the revenue records, it is registered as
ghair mumkin pahad in the possession of the Forest Department
and as per the reply of the Forest Department, these khasra
numbers belonged to them. Whether the same belongs to the
Forest Department or not would not make any difference as
admittedly, these khasra numbers are part of the ghair mumkin
pahad and respondent No.4 has no right to encroach upon the
same.
11. The contention of counsel for the respondent No.4 that
while digging on these mountains, idols of Lord Mahaveer Swamy
and Lord Parshwanath were unearthed does not appeal to the
Court for the very reason that since these mountains were not
belonging to respondent No.4, there is no justification as to how
they went upon these mountains and under whose authority did
they dig these mountains which are in the name of Forest
Department. The fact that respondent No.4 initially applied to the
Forest Department for allotment of these ghair mumkin pahad
goes to show that respondent No.4 were aware that these ghair
mumkin pahad are belonging to the Forest Department, however,
[2024:RJ-JP:34195-DB] (7 of 8) [CW-14483/2019]
later on, they applied to the Collector for allotment/regularization
of these ghair mumkin pahad. From perusal of reply of respondent
No.4, it is evident that they are in possession of many hectares of
adjoining land and they have encroached upon the ghair mumkin
pahad without any authority of law.
12. Petitioner- Shankar Lal filed D.B. PIL Petition on
26.08.2019 and S.B. Civil Writ Petition is filed on 15.12.2021 by
Shri Shantinath Digamber Jain Atishay Shetra. Even if they had
made an assertion in the earlier writ petition bearing
No.1528/2021 about the pendency of the PIL, still it was the
bounden duty of the petitioners in Writ Petition No.17/2022 to
disclose about the pendency of the PIL petition, wherein there was
a prayer for removal of the encroachment. Petitioner- Shri
Shantinath Digamber Jain Atishay Shetra are encroachers as they
have admitted moving an application before the Forest
Department and thereafter, before the Collector for regularization
of their possession. Since they have not sought any permission
from the Forest Department or the Collector before entering into
the possession of the ghair mumkin pahad, they have no right to
continue in possession of ghair mumkin pahad.
13. Consequently, D.B. PIL Petition No.14483/2019 filed by
the petitioner- Shankar Lal deserves to be and is accordingly,
allowed. Respondent- State is directed to remove the
encroachment and handover the property to the Forest
Department.
14. We hold that no encroachment can be permitted upon
the Government land, more particularly upon the forest land on
the ground of religious feelings. Shri Shantinath Digamber Jain
[2024:RJ-JP:34195-DB] (8 of 8) [CW-14483/2019]
Atishay Shetra has not even mentioned the day on which idols
were unearthed, the particular khasra numbers from where the
idols were unearthed and have tried to build the case on religious
sentiments. They have not taken any permission from the Forest
Department or the Government before entering upon the ghair
mumkin pahad and before digging the mountains. The theory of
unearthing of idols on the pretext of religious tenets do not find
favour with the Court. S.B. Civil Writ Petition No. 17/2022 filed by
Shri Shantinath Digamber Jain Atishay Shetra deserves to be
dismissed also on account that they have not disclosed about the
pendency of the PIL petition. It also deserves to be dismissed on
the ground that petitioners have encroached upon forest land
without valid permission. Hence, S.B. Civil Writ Petition
No.17/2022 filed by Shri Shantinath Digamber Jain Atishay Shetra
is dismissed with cost of Rs.5 lac, out of which, cost of Rs.2 lac
should be paid to petitioner- Shankar Lal in D.B. PIL petition
No.14483/2019 who has brought into limelight the illegal
encroachment made by Shri Shantinath Digamber Jain Atishay
Shetra within a period of four weeks and the remaining cost of
Rs.3 lac is to be deposited with the Rajasthan State Legal Services
Authority, Jaipur within a period of four weeks.
15. On non-deposition of cost within four weeks, Rajasthan
State Legal Services Authority as well as petitioner- Shankar Lal
are permitted to bring it to the notice of the Court by moving an
appropriate application.
16. All pending applications stand disposed.
(PRAVEER BHATNAGAR),J (PANKAJ BHANDARI),J
CHANDAN/
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