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2015 DIGILAW 1526 (RAJ)

Gopal v. State of Rajasthan

2015-08-14

AJIT SINGH, SUNIL AMBWANI

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JUDGMENT : Hon'ble AMBWANI, C.J.—We have heard learned counsel appearing for the parties. 2. In these three writ petitions, the petitioners have prayed for the following reliefs:- In CWP No.6894/2007: (i) to declare that the land of petitioners pertaining to khasara Nos.11/71 and 11/76 of village Beed Papad measuring 26 bighas and 15 biswas and 14 bighas and 4 biswas respectively is not included nor could have been included in the reserved forest or Nahargarh Wild Life Sanctuary constituted vide notifications dated 22.11.1961 (Annex.-10) and 22.9.1980 (Annex.18) respectively. (ii) to declare the notification dated 21.11.1961 (Annex.10) and 22.9.1980 (Annex-18) as null and void and also to quash and set aside the same if for any reason it is decided that the aforesaid land has been included in the reserved forest and Nahargarh Wildlife Sanctuary vide the said notifications; (iii) to restrain the respondents from dispossessing the petitioners or otherwise interfering in their rights in the land in question and also the use and enjoyment thereof by the petitioners; (iv) to issue any other appropriate relief which this Hon'ble Court may deem fit, just and proper in the facts and circumstances of the case in favour of the petitioner. (v) to allow the cost of the writ petition in favour of the petitioner. In CWP No.13751/2009: (i) to declare the notification dated 21.11.1961 (Annex.23) and 22.9.1980 (Annex.31) as null and void and also to quash and set aside the same if for any reason it is decided that the land mentioned in prayer (ii) has been included in the reserved forest and Nahargarh Wildlife Sanctuary vide the said notifications; (ii) to declare that the land of petitioners pertaining to khasara Nos. 12/77 & 46/2 of village Beed Papad measuring 217 bighas and 1 biswas is not included nor could have been included in the reserved forest or Nahargarh Wild Life Sanctuary constituted vide notifications dated 22.11.1961 (Annex.23) and 22.9.1980 (Annex.31) respectively. (iii) to restrain the respondents from dispossessing the petitioners or otherwise interfering in their rights in the land in question and also the use and enjoyment thereof by the petitioners; (iv)to issue any other appropriate relief which this Hon'ble Court may deem fit, just and proper in the facts and circumstances of the case in favour of the petitioners. (v) to allow the cost of the writ petition in favour of the petitioners. (v) to allow the cost of the writ petition in favour of the petitioners. In CWP No.13750/2009: (i) to declare the notification dated 21.11.1961 (Annex.15) and 22.9.1980 (Annex-23) as null and void and also to quash and set aside the same if for any reason it is decided that the land mentioned in prayer (ii) has been included in the reserved forest and Nahargarh Wildlife Sanctuary vide the said notifications; (ii) to declare that the land of petitioners pertaining to khasara Nos.11/75 & 11/70 of village Beed Papad measuring 106 bighas and 18 biswas is not included nor could have been included in the reserved forest or Nahargarh Wild Life Sanctuary constituted vide notifications dated 22.11.1961 (Annex.15) and 22.9.1980 (Annex.23) respectively. (iii) to quash and set aside the impugned notices dated 30.09.2009 (Annex.-46 & 47) and to restrain the respondents from taking any further actions in pursuance thereof and also to restrain them from dispossessing the petitioners or otherwise interfering in their rights in the land in question and also the use and enjoyment thereof by the petitioners; (iv) to issue any other appropriate relief which this Hon'ble Court may deem fit, just and proper in the facts and circumstances of the case in favour of the petitioners. (v) to allow the cost of the writ petition in favaour of the petitioners.” 3. A writ petition filed in public interest is pending for rejuvenation of Dravyawati River, which flows from the hills of Nahargarh where the land in dispute is situate, upto River Dhoond, crossing the City of Jaipur for about 47 kms. as an important water source. It was noticed that there are three writ petitions of the alleged Khatedars, challenging the Notification dated 21.11.1961, issued under Section 20 of the Rajasthan Forest Act, 1953 (in short, 'the Act of 1953'), in respect of village 'Beed Papad' in Nahargarh, pending in which in two writ petitions, an order of status-quo is operating. 4. The petitioners are cultivating the land and have also raised construc-tions on the land. Concerns were expressed about unauthorized occupation of these persons over large area and raising of constructions, obstructing the catchment area of Dravyawati River in the forest in Nahargarh hills. 5. All the three writ petitions, cognizable by learned Single Judge, were directed to be listed for final hearing before us. 6. Concerns were expressed about unauthorized occupation of these persons over large area and raising of constructions, obstructing the catchment area of Dravyawati River in the forest in Nahargarh hills. 5. All the three writ petitions, cognizable by learned Single Judge, were directed to be listed for final hearing before us. 6. After hearing learned counsel appearing for the parties, we find that the writ petitions were filed challenging the notice issued by the Forest Officer for non-forestry activities on the land, which was acquired by a Notification dated 21.11.1961 under the Act of 1953. These writ petitions were filed in the year 2007 and 2009, after a period of about 46 years, challenging the Notification dated 21.11.1961 under Sec. 20 of the Act of 1953, which preceded the Notification dated 15.10.1947, issued under the Jaipur Forest Act, 1939. 7. The petitioners are the purchasers of the land from the alleged khatedars, who were allegedly cultivating the land despite Notification dated 21.11.1961, issued under Section 20 of the Act of 1953. The land occupied by the petitioners also falls in the Nahargarh Wildlife Santuary, declared vide Notification dated 22.09.1980, issued under the Wild Life (Protection) Act, 1972 (in short, 'the Act of 1972'). 8. We are informed by Mr. G.S. Gill, learned Additional Advocate General, that one Shri Mohan Lal Sharma had filed an application before the Hon'ble Supreme Court in P.N. Godavarman vs. UOI, Civil Writ Petition (Civil) No.202/1995, in which the matter relating to an area of 1120 Bighas 11 Biswas in village Beed Papad in Tehsil Jaipur, District Jaipur, including the land claimed by the petitioners in these writ petitions, declared as reserve forest under Section 20 of the Act of 1953 vide Notification dated 21.11.1961, was referred to the Central Empowered Committee (CEC). 9. The CEC initially passed an order, recommending that non-forestry activities in the forest area in village Beed Papad should not be allowed. Since the CEC did not give any opportunity to the writ-petitioners to be heard, the petitioners filed an application in the Hon'ble Supreme Court, on which an order was passed directing the CEC to hear their objections. 9. The CEC initially passed an order, recommending that non-forestry activities in the forest area in village Beed Papad should not be allowed. Since the CEC did not give any opportunity to the writ-petitioners to be heard, the petitioners filed an application in the Hon'ble Supreme Court, on which an order was passed directing the CEC to hear their objections. The CEC, in its order dated 22.04.2013, after hearing the parties, recommended that the area notified as reserve forest in village Beed Papad, Tehsil Jaipur, District Jaipur vide Notification dated 21.11.1961, excluding the land legally transferred during 1971 to the Industry Department, Rajasthan Mineral Development Corporation, should be recorded as “reserve forest” in the and records maintained by the Revenue Department, and that non-forestry activity in the area shall be permitted in violation of the provisions of the Forest (Conservation) Act, 1980, and the Wild Life (Protection) Act, 1980. The recommendations of the CEC in para 14 of its report, dated 22.04.2013, which is pending consideration before the Supreme Court, are quoted as below:- “14. In view of the above, the CEC reiterates its earlier recommendations made in its Report dated 23.04.2007 in IA Nos.1628-1630 that: i) the areas notified as reserve forest in village Beed Papad, Tehsil Jaipur, District Jaipur vide notification dated 21.11.1961 issued under Section 20 of the Rajasthan Forest Act, 1953, excluding 488 bighas of land legally transferred during 1971 to the Industry Department, Rajasthan Mineral Development Corporation, should be recorded as “reserve forest” in the land records maintained by the Revenue Department. No non-forestry activity in the area shall be permitted in violation of the provisions of the Forest (Conservation) Act, 1980, the Wild Life (Protection), 1980 and this Hon'ble Court's order dated 12.12.1996 and 14.2.2000; and ii) all orders issued in the past in respect of this area in violation of the provisions of the F.C. Act and this Hon'ble Court's order shall be treated as null and void. 10. Learned counsel appearing for the petitioners submits that the concerned plots in village Beed Papad, were never included in the preliminary notification under the Jaipur Forest Act, 1939. He further submits that by manipulation, the Settlement Officer mentioned about said plots in village Beed Papad in 1950, whereas these were actually carved out in the settlement of 1958. 10. Learned counsel appearing for the petitioners submits that the concerned plots in village Beed Papad, were never included in the preliminary notification under the Jaipur Forest Act, 1939. He further submits that by manipulation, the Settlement Officer mentioned about said plots in village Beed Papad in 1950, whereas these were actually carved out in the settlement of 1958. From the information received by the petitioners under the Right to Information Act, it is established that the records were manipulated to include the plots purchased by the petitioners. He submits that the concerned plots could not have been included in the land notified as forest area, and that in any case, the activities of cultivation by the duly recorded khatedars is permissible. 11. Learned counsel for the petitioners further submits that the names of predecessors-in-interest of the petitioners were recorded as khatedars and were mutated regularly on the date of purchase of the land by sale deeds in the year 2001. All the petitioners are, therefore, khatedars of the land and permissible to cultivate the land, and since under the Rajasthan Land Revenue Act, 1/5th of the land can be used for constructions, they have also constructed their houses and farm houses. 12. The Notification dated 21.11.1961, has been challenged in this Court after a period of about 46 years in the year 2007, on the pretext that notices under Section 34A of the Wild Life (Protection) Act, 1972, have been given to the petitioners by the Forest Department. 13. It is admitted that the petitioners were not the original khatedars, and that they had purchased the land in the years 2000-2001 as it was recorded as khatedari of their predecessor in interest in 'Jamabandi'. The land was sold by the Khatedars after 40 years of the issuance of the Notification dated 21.11.1961, declaring the land as forest land under Sec. 20 of the Act of 1953. 14. Section 5 of the Rajasthan Forest Act, 1953 provides as follows:- “Sec. 5. The land was sold by the Khatedars after 40 years of the issuance of the Notification dated 21.11.1961, declaring the land as forest land under Sec. 20 of the Act of 1953. 14. Section 5 of the Rajasthan Forest Act, 1953 provides as follows:- “Sec. 5. Bar of accrual of forest rights.- After the issue of a notification under Sec 4, no right shall be acquired in or over the land comprised in such notification except by succession or under a grant or contract in writing made or entered into by or on behalf of the State Government or some person in whom such right was vested when the notification was issued; and no fresh clearings for cultivation or for any other purpose shall be made in such land except in accordance with such rules, as may be made by the State Government in this behalf.” 15. The petitioners have neither acquired the land by succession, nor under a grant or contract in writing made or entered into by or on behalf of the State Government or some person in whom such right was vested when the notification was issued. The petitioners, therefore, cannot cultivate the land, or raise constructions of their houses on the land, which has been notified as forest land by the Notification dated 21.11.1961. 16. We are not impressed with the submission that village Beed Papad was not included in the preliminary notification, inasmuch as the preliminary notification referred to boundaries of the encircled area, which was proposed to be acquired as forest area under the then Jaipur Forest Act. A handwritten order of the Settlement Officer has been filed, in which objections raised by the residents of village Beed Papad against the preliminary notification were decided on the ground that they did not have any khatedari rights over the land. The objections were rejected. 17. The objections filed by the residents of village Beed Papad, its rejection and the final Notification dated 21.11.1961, raises presumption to correctness of official acts, after which the petitioners could not be heard to say that village Beed Papad was not included in the preliminary notification. The CEC has also recorded similar findings in its recommendations. 18. 17. The objections filed by the residents of village Beed Papad, its rejection and the final Notification dated 21.11.1961, raises presumption to correctness of official acts, after which the petitioners could not be heard to say that village Beed Papad was not included in the preliminary notification. The CEC has also recorded similar findings in its recommendations. 18. The submission that some lands, out of the lands declared as forest area, had been allotted for industrial development, also does not impress us, inasmuch the Central Empowered Committee has excluded the land alloted for industrial purposes, as forest land. The question as to whether industrial activities should not be allowed to be carried out on such land, is a separate question, which we do not propose to consider, as necessary facts have neither been pleaded, nor established and that any irregular allotment or use will not give any rights to the petitioners. 19. We also find that the interference caused by learned Single Judge by passing orders of status quo in the writ petitions was wholly unwarranted, when the matter was considered and recommendations were made by the Central Empowered Committee. Once it came to the notice of the Court that the matters are pending in the Supreme Court and the CEC had submitted its recommendations, it was not open to the Court to pass interim orders, on the pretext that some applications alleging forgery in the records, filed by the petitioners, are pending in the Supreme Court. We also find that all the three writ petitions wee hopelessly barred by laches when they were filed, inasmuch as the Notification published on 21.11.1961, was issued 46 years before the writ petitions were filed in the year 2007. There are no pleadings on record that the predecessor in interest of the petitioners, or the petitioners themselves, did not have the knowledge of the Notification, dated 21.11.1961 issued under Section 20 of the Act of 1953, or the subsequent Notification dated 22.09.1980, issued under the Wild Life (Protection) Act, 1972. 20. The Forest (Conservation) Act, 1980, prohibits non-forestry activities inside the notified forest area including reserve forest. The cultivation of the land and the construction of houses is admittedly non-forestry activities, which cannot be carried out in the notified forest land. 21. 20. The Forest (Conservation) Act, 1980, prohibits non-forestry activities inside the notified forest area including reserve forest. The cultivation of the land and the construction of houses is admittedly non-forestry activities, which cannot be carried out in the notified forest land. 21. We may also observe here that Nahargarh hills are lifeline and lungs of the City of Jaipur, situate near Amer, and serve as the catchment area of Dravyawati River, which is severely polluted and its flow has been hampered on account of non-availability of water from the catchment area of Nahargarh hills. 22. In view of the aforesaid discussion, we are of the view that all these three writ petitions were hopelessly barred by gross unexplained laches when they were filed. The land, subject matter of these writ petitions, was declared as 'reserve forest' under Section 20 of the Rajasthan Forest Act, 1953, vide Notification dated 21.11.1961, which was never challenged by the predecessor in interest of the petitioners, or the petitioners themselves, prior to filing these three writ petitions in the year 2007 and 2009. The Central Empowered Committee has arrived at a finding that the Notification declaring the land as 'reserve forest', was valid, and that no non-forestry activity can be carried out on these lands in village 'Beed Papad'. 23. All the writ petitions are, accordingly, dismissed. It will be open to the forest authorities to stop all the non-forestry activities including cultivation, and remove all encroachments from the land, which was covered by the Notification dated 21.11.1961, declaring the land as 'forest land' under Section 20 of the Rajasthan Forest Act, 1953. All the occupations and constructions from the notified Forest land will be removed without any further delay. 24. A copy of the order will be placed in the connected files.