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2019 DIGILAW 2965 (RAJ)

Govind Son Of Shivlal v. State Of Rajasthan

2019-12-11

ASHOK KUMAR GAUR

body2019
ORDER : 1. The present batch of writ petitions have been filed by the petitioners challenging notices issued by Assistant Engineer, Public Works Department, Sub-Division, Kaila Devi, District Karauli whereby the petitioners have been asked to remove the construction/encroachment within seven days, failing which the department was to carry out the necessary exercise of demolishing the illegal construction/encroachment. 2. Counsel for the petitioners submitted that prior to notice, no opportunity was afforded to the petitioners and no survey was conducted to find out the alleged construction/encroachment. Counsel further submitted that the petitioners are having valid title document in their favour and as such, the presumption by the respondents to treat such construction as encroachment is absolutely unjustified. 3. Counsel further submitted that if at all the respondents wanted to take action in pursuance of directions said to be given by National Green Tribunal (NGT), the necessary exercise ought to have been undertaken to determine as who is in valid possession of the land and construction made thereon and in what manner, the construction made, is treated to be encroachment. 4. Learned Additional Advocate General Mr. Rajesh Maharshi, has filed reply on behalf of the respondent-State in some of the cases. 5. Counsel for the respondents submits that NGT has passed orders on 21.8.2017, 17.10.2019 and 19.11.2019 whereby the District Collector, Karauli, Sub Divisional Officer and Tehsildar Karauli have been called in person by the NGT and they have been directed to remove encroachments said to be made in an around the Kaila Devi Temple. 6. Counsel for the respondents submitted that even the Officers have been saddled with costs of Rs.10,000/- and further the Superintendent of Police, Karauli is directed to provide adequate force to the Collector when the action of demolition is to take place. 7. Counsel for the respondents submitted that the District Collector, Karauli has issued an order dated 1.11.2019 whereby timeline has been provided for constituting a Survey Team and further after preparing the survey report, the necessary action of earmarking the encroachments has been carried out and further the notice to such persons who are in illegal occupation and have made encroachment, is to be given to them. 8. 8. Counsel for the respondents submitted that the entire action by the District Administration is taken in pursuance of directions issued by NGT and as such no illegality has been committed by the respondents while issuing notices to the petitioners to remove the illegal construction made on public road or in the area which has been earmarked as Kaila Devi Wildlife Sanctuary. 9. Counsel for the respondents further submitted that the necessary instructions have been issued to the Tehsildar Karauli to take action against the persons who have made such encroachments. Counsel submitted that the notice has been given to the petitioners to remove encroachments, however, the final order is yet to be passed by Tehsildar Karauli by issuing notice under Section 91 of the Rajasthan Land Revenue Act. 10. Counsel for the respondents submitted that the present petitions are premature, as no order has been passed by the Tehsildar while invoking power under Section 91 of the Rajasthan Land Revenue Act. 11. Learned counsel for the petitioners submitted in rejoinder that if at all the action is to be taken by the Authorities, the prior notice ought to have been given by the Tehsildar before taking any action under Section 91 of the Rajasthan Land Revenue Act and further opportunity of hearing is required to be afforded to the petitioners. 12. I have heard the learned counsel for the parties and perused the material available on record. 13. This Court finds that though notice has been issued by Assistant Engineer, Public Works Department, Sub-Division Kaila Devi, however, the order is yet to be passed by the Tehsildar by issuing notice to the petitioners under Section 91 of the Rajasthan Land Revenue Act. 14. This Court finds that if the order of NGT is to be complied by the State Government, the petitioners at least should have been given an opportunity to explain as in what manner they are in occupation of land/construction raised by them. 15. The statement of the learned Additional Advocate General, makes it clear that now procedure is going to be adopted by the Tehsildar by giving a notice to the persons who are said to be in illegal possession/encroachments over the land in question which has been directed to be maintained by the NGT. 15. The statement of the learned Additional Advocate General, makes it clear that now procedure is going to be adopted by the Tehsildar by giving a notice to the persons who are said to be in illegal possession/encroachments over the land in question which has been directed to be maintained by the NGT. These writ petitions are disposed of by giving directions to the respondents to serve notice on the petitioners under Section 91 of the Rajasthan Land Revenue Act and after affording the opportunity to the petitioners, the Competent Authority/Tehsildar will be free to pass appropriate order and if it is found that the petitioners have made any encroachments over the public land and or land belonging to Wildlife Sanctuary, the necessary action to remove such encroachment will be immediately taken. It is made clear that till proceedings are concluded by the Tehsildar under Section 91 of the Rajasthan Land Revenue Act, the alleged encroachment/construction of the petitioners will not be removed/demolished. 16. A copy of this order be separately placed in each petition.