Research › Search › Judgment

Rajasthan High Court · body

2019 DIGILAW 2467 (RAJ)

Prem Devi v. State of Rajasthan

2019-09-13

SANGEET LODHA

body2019
JUDGMENT Sangeet Lodha, J. - By way of this writ petition, the petitioner has challenged legality of order dated 3.9.12 issued by the Deputy Secretary, Department of Revenue (Group III), Government of Rajasthan, whereby the land measuring 0.16 bighas out of the land measuring 1.05 bighas comprising khasra no.73 of village Ambedkar Colony, Tehsil Jahajpur categorised as gair mumkin rasta has been set apart for development of abadi. 2. The writ petition was admitted by this court vide order dated 24.1.14 and while disposing of the stay petition, vide order dated 4.3.14, an ad interim order was passed in favour of the petitioner in the following terms: The effect and operation of the impugned order dated 3.9.12 passed by the Deputy Secretary, Department of Revenue, Government of Rajasthan, shall remain stayed till the disposal of the writ petition. 3. Learned counsel appearing for the petitioner contended that the disputed land being part of way is not disputed and thus, so as to regularise the encroachment made by the respondents no. 6 to 8 over the disputed land, the order impugned passed by the State Government is not sustainable in the eyes of law. Learned counsel submitted that even the State is not empowered to divest the land use of the land forming part of the public way and thus, the order impugned issued by the State Government acting without jurisdiction, deserves to be quashed on this count alone. In this regard, the learned counsel has relied upon a Bench decision of this court in Gulab Kothari vs. State of Rajasthan & Ors.: D.B.C.Writ Petition No.1554/04. 4. On the other hand, Mr. Ajay Vyas, learned counsel appearing for the private respondents submitted that the suit being Civil Suit No.8/12, filed by the petitioner herein claiming easmentary right to use the disputed land as way already stands dismissed by the court of Civil Judge, Jahajpur vide judgment and decree dated 4.5.17 and thus, the petition filed by the petitioner questioning the legality of the order impugned is not maintainable. Learned counsel submitted that the disputed land is occupied by the private respondents; they have constructed their houses thereon and therefore, the decision taken by the State Government in setting apart the land for abadi purpose does not warrant any interference by this court in exercise of its extra ordinary jurisdiction. Learned counsel submitted that the disputed land is occupied by the private respondents; they have constructed their houses thereon and therefore, the decision taken by the State Government in setting apart the land for abadi purpose does not warrant any interference by this court in exercise of its extra ordinary jurisdiction. However, the factum of the disputed land forming part of way and categorised as such in the revenue record is not disputed by the learned counsel. 5. I have considered the rival submissions and perused the material on record. 6. Indisputably, the disputed land measuring 0.16 bighas set apart by the State Government for development of abadi forms part of gair mumkin rasta. In this regard, even the order impugned issued by the State Government and the revenue record placed before this court are self explanatory. 7. It is well settled that the public ways are meant for convenience of public at large and no private person can be allowed to divest the same unauthorisedly for personal use. As a matter of fact, every citizen has right to pass over every inch of the land forming the part of public way and custody thereof with the State and the Local Authorities is in realm of public trust and therefore, even the State Government or the Local Authorities are not empowered to divest the land use of the land forming part of public way for any other purpose. 8. Considering the aforesaid aspect of the matter, this court in the matte of Gulab Kothari (supra) has issued specific directions to the State Government in the following terms: 205. xxxx ...xxxxx (xix) The local authorities and the State Government shall take immediate steps to check the encroachment and unauthorised constructions over the public ways and footpaths. The encroachment made on the footpath and public way by way of putting stairs, ramps, hoardings or fencing etc. in various cities and towns of the State shall be removed in accordance with law, expeditiously. 9. In this view of the matter, the order impugned passed by the State Government setting apart the land forming part of the public way for abadi purposes, is ex facie without jurisdiction. 10. It is not even the case of the respondents that they are holding any valid title over the disputed land rather, they are occupying the land unauthorizedly. In this view of the matter, the order impugned passed by the State Government setting apart the land forming part of the public way for abadi purposes, is ex facie without jurisdiction. 10. It is not even the case of the respondents that they are holding any valid title over the disputed land rather, they are occupying the land unauthorizedly. Any encroachment made on the land forming part of the public way cannot be protected the courts and the same must be removed by the State Government/Local Authorities, in accordance with law. 11. Coming to the suit preferred by the petitioner claiming easementary right to use the public way being dismissed by the Civil Court, suffice it to say that the right of the petitioner was not recognized by the Civil Court, taking into consideration inter alia the order impugned issued by the State Government setting apart the land for abadi purpose. Obviously, the legality of the order passed by the State Government setting apart the land forming part of public way for abadi purpose was not raised and adjudicated by the Civil Court and thus, the writ petition preferred by the petitioner questioning the legality of the order issued by the State Government cannot be dismissed on this count. 12. In view of the discussion above, the writ petition preferred by the petitioner deserves to be allowed. 13. Accordingly, the writ petition is allowed. The order impugned dated 3.9.12 issued by the Deputy Secretary, Department of Revenue (Group III), Government of Rajasthan, is quashed. No order as to costs.