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2013 DIGILAW 1391 (RAJ)

Durga Vihar Samiti (Regd) v. State of Rajasthan

2013-08-01

GOVIND MATHUR

body2013
JUDGMENT 1. - The petitioner, a society registered under the Societies Registration Act, has approached this Court to have an appropriate writ, order or direction for respondent Municipal Corporation, Jodhpur to remove the encroachments made by certain persons on the land earmarked for park in the residential colony known as Durga Vihar. 2. As per the averments made in petition for writ the Durga Vihar colony is established on a land that was initially an agricultural land and was converted into abadi in the year 1984. A lay out plan was submitted to Town Planning Department for developing a colony on the land aforesaid by making necessary sub division of plots. The sub division was approved by the authority competent with certain changes. By communication dated 1.5.1985 it was also conveyed that the land earmarked for public utility-2- shall vest with Urban Improvement Trust, Jodhpur (now Jodhpur Development Authority, Jodhpur). The land said to be left for park was said to be encroached in the year 1995 by certain individuals and that was removed in the year 1997, however, after lapse of some time encroachment was again made and that was creating unhygienic conditions in the surroundings. The petitioner society agitated the cause of the residents of Durga Vihar relating to encroachment made on public land by submitting several representations but of no consequence. According to the petitioner, Section 98 of the Rajasthan Municipalities Act specifies duties of municipalities including to clean the municipal area i.e. kept open for enjoyment of public at large, but the Municipal Corporation failed to discharge its statutory duty. 3. Under an order dated 1.3.2005 a notice was issued to the respondents for final disposal of the writ petition. After service of notices the matter was heard at length and by an order dated 6.4.2005 the Municipal Corporation, Jodhpur was directed to furnish the number of persons having encroachment upon the land of park. It was also made clear that if the encroachments on the land concerned would have been made prior to coming within the jurisdiction of Municipal Corporation, Jodhpur then the Corporation may avail necessary information from Urban Improvement Trust, Jodhpur. By an another order dated 19.4.2005 the Municipal Corporation, Jodhpur was directed to submit a tentative list of all properties earmarked for parks in Jodhpur municipal area. By an another order dated 19.4.2005 the Municipal Corporation, Jodhpur was directed to submit a tentative list of all properties earmarked for parks in Jodhpur municipal area. The Corporation was also directed to make the Court acquaint about the scheme for development of-3- parks in the residential colonies by getting involvement of public at large. A list indicating 265 sites earmarked for parks was placed on record on 26.4.2005. Out of 265 sites referred in the list, 208 are within the jurisdiction of Municipal Corporation and remaining 57 are within the area under the control of the Jodhpur Development Authority. Suffice to mention here that nine persons preferred applications before this Court to become party to the writ proceedings in the instant matter with assertion that they were having possession on the land in question from last number of years. The applications came to be rejected under order dated 23.5.2005 on the count that the applicants if having any right on the land in question, may agitate the same by availing appropriate remedy before appropriate forum, but the writ petition to have direction against local bodies for removal of encroachments cannot be converted into a litigation for deciding their rights. 4. 4. By an another order dated 1.6.2005 certain interim directions were issued in the terms following:- "(a) Any land which is land of park earmarked in master plan or in any scheme or in any scheme under the provisions of the Rajasthan Land Revenue Act in plan for conversion of the land or land for which pattas have been issued to persons; (b) The regularisation shall not be made for the land of forest, road, public land, playground, catchment area and other public utility land affecting public amenities; (c) This Court also took note of the fact that the State is proposing to regularise the land leaving-4- narrow lanes or even no lane for the residents of Kutchi Basti by specifically issuing the circular dated 21.10.1999, therefore, the State is restrained from regularising any land where the way will be less than 20 feet by regularisation of encroachment; (d) This Court also noticed that by the said circular, the State has decided to regularise the land irrespective of financial position of the person who has encroached upon the Government land, therefore, it is ordered that no regularisation be made in favour of the person who is not below the poverty line; (e) No regularisation be made of land or construction in favour of those persons who any time in past obtained regularisation for land for residential or commercial purpose; (f) This Court further orders that no regularisation be made in favour of the person who is purchaser of encroachment (possession) with or without construction; (g) No regularisation be made in favour or in the name of the person who has sold his illegal possession with or without construction, to anybody else." 5. The respondents were also directed to take immediate action for removal of the encroachment which they are supposed to remove by following procedure under the Rajasthan Municipalities Act and the Urban Improvement Trust Act. Pertinent to mention here that during pendency of the writ petition an scheme was framed by the Government of Rajasthan to regularise certain "kacchi bastis" and that scheme was also examined by the Court under the order dated-5- 16.5.2005 and 2.6.2005. Pertinent to mention here that during pendency of the writ petition an scheme was framed by the Government of Rajasthan to regularise certain "kacchi bastis" and that scheme was also examined by the Court under the order dated-5- 16.5.2005 and 2.6.2005. Looking to the scheme made by the Government of Rajasthan the Court permitted the respondents to start the process for regularisation of land in light of the policy dated 30.9.2005, but not to issue any title deed or patta in favour of any person whosoever. 6. On 7.8.2006 the respondents submitted a complete action plan for removal of encroachments of private individuals over the park area. Suffice to mention here that the plan was not specifically for the land i.e. subject matter of instant petition for writ but in general. Looking to the nature of the scheme the Court under an order dated 7.8.2006 observed that "if possible action may be taken for cleaning the parks by removing the encroachments of private individuals who have put their huts etc. over various park land". The Municipal Corporation, Jodhpur and the Urban Improvement Trust, Jodhpur were further directed by order dated 18.8.2006 to furnish a complete programme of removing the encroachment from park land and road by 30.8.2006. On 30.8.2006 the then Urban Improvement Trust, Jodhpur, Municipal Corporation, Jodhpur as well as the Government of Rajasthan were directed to implement their policy relating to removal of encroachments from parks, other green lands and play grounds. 7. On 19.9.2006 the Court disposed of certain applications preferred by private persons to become party to the proceedings. A detailed order summing up all earlier orders was passed with observation that "the action of the local officers in the matter of implementation of the State-6- Government's policy was totally dis-satisfactory and that shows that they themselves will not be able to remove encroachments by taking help of one or other pretext". In such circumstances a direction was given to the Secretary to the Government of Rajasthan, Department of Urban Development and Housing, Jaipur to personally supervise the project of removal of encroachment from parks and roads within the city limits of Jodhpur. The Secretary was also directed to remain present before the Court on 11.12.2006. In such circumstances a direction was given to the Secretary to the Government of Rajasthan, Department of Urban Development and Housing, Jaipur to personally supervise the project of removal of encroachment from parks and roads within the city limits of Jodhpur. The Secretary was also directed to remain present before the Court on 11.12.2006. On 19.12.2006 a detailed report was submitted by the Secretary to the Government of Rajasthan, Department of Urban Development and Housing regarding the actions taken by the Government of Rajasthan for removing the encroachments. Subsequent thereto, looking to certain impediments in removing the encroachments, the Court passed the order dated 23.7.2007, that reads as under:- "Learned AAG submits that in this litigation, the dispute with respect to Kacchi Basti is only about the existence of Rajeev Gandhi colony and rest are the encroachments isolated. Learned AAG submits that since the controversy involved in this litigation is in relation to only one kacchi basti, therefore, the interim order passed by this Court restraining the State Government from proceeding with regularisation under the scheme to regularise the kacchi basti in rest part may be vacated or modified. During the course of arguments, this Court has suggested that if there is any possibility of settlement between the persons who are occupying the land in the name of Rajeev Gandhi colony where upon learned counsels Mr. BL Purohit and Mr. NS Acharya submitted that they will explore the possibility by asking the residents of said-7- Rajeev Gandhi Colony and will inform the court that in case alternate land is given to them, they are ready to shift. If there is any possibility of settlement, the matter may be discussed by the good offices of learned AAG and if there is any possibility for any settlement in accordance with law, then that may be informed to this Court so as to control damage which may be caused either to the public at large or to the residents of Rajeev Gandhi Colony. It may be made clear that any settlement arrived at will be without prejudice to the rights of the other litigants. In view of the above, this Court at present is not inclined to modify the order as the entire may be settled or final order may be passed in short time after hearing the parties. It may be made clear that any settlement arrived at will be without prejudice to the rights of the other litigants. In view of the above, this Court at present is not inclined to modify the order as the entire may be settled or final order may be passed in short time after hearing the parties. List this matter for finding out possibility of settlement on 26.7.2007 on the top of list as first case a/w SBC Writ Petition No. 3912/2005. In case if there will be no settlement, the matter will be heard on 26.7.2007 itself." 8. The matter was again considered at length on 1.8.2007 and on being satisfied with corrective measures taken by the Government of Rajasthan the interim directions given on 24.7.2006 were vacated keeping the respondents at liberty to proceed with the process of regularisation of encroachments within the framework of the policy adopted by the Government of Rajasthan. 9. With this factual background, the issue with regard to alleged encroachment in Durga Vihar is yet pending. 10. It is submitted by counsel for the petitioner that the encroachments in the area concerned have yet not been removed. At the same time it is submitted by counsel for the Municipal Corporation and Jodhpur Development Authority, Jodhpur that in the area concerned certain people are having old possessions and as such their cases are required to be examined in accordance with law and existing policy relating to removal/regularisation of the possession on the Government land. 11. Having considered the entire factual background, I am of the view that the encroachments made on Government land should be removed and all public utilities should be made functional. However, at the same time the old possessions on such lands also deserves to be suitably examined in accordance with law. 12. As such, I deem it appropriate to dispose of this petition for writ with a specific direction that the State Government shall ensure that no encroachment henceforth be made on any public path, land earmarked for park or the land reserved for any other public utility service. So far as the land i.e. subject matter of present petition for writ is concerned, the Divisional Commissioner, Jodhpur is directed to examine the entire issue with the aid of the Commissioner, Municipal Corporation, Jodhpur; Commissioner, Jodhpur Development Authority, Jodhpur and the Collector,-9- Jodhpur. So far as the land i.e. subject matter of present petition for writ is concerned, the Divisional Commissioner, Jodhpur is directed to examine the entire issue with the aid of the Commissioner, Municipal Corporation, Jodhpur; Commissioner, Jodhpur Development Authority, Jodhpur and the Collector,-9- Jodhpur. The petitioner may submit its claim to the Divisional Commissioner, Jodhpur on or before 02.09.2013. The Divisional Commissioner after receiving the claim shall issue a public notice and call objections from the persons interested. He will hear the representatives of the petitioner as well as the objectors and also examine the entire record relating to the land. He shall also avail necessary aid from the Collector, Jodhpur; Commissioner, Municipal Corporation, Jodhpur and the Commissioner, Jodhpur Development Authority, Jodhpur to arrive at a fair decision. He shall pass appropriate order after considering the entire issue within a period of six months from the date of issuance of public notice. Till disposal of the issue, status quo with regard to the land in question as existing today be maintained. 13. No order to cost.Petition Disposed of. *******