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2020 DIGILAW 308 (RAJ)

Kalu Ram v. State of Rajasthan

2020-02-03

I.MAHANTY, PUSHPENDRA SINGH BHATI

body2020
JUDGMENT : 1. This writ petition, in the form of public interest litigation, has been preferred claiming the following reliefs: "It is therefore, humbly and respectfully prayed that by an appropriate writ, order or direction, the construction raised by the encroacher over the Gair Mumkin Nadi, Gair Mumkin Paal and in road boundary of Gram Panchayat, Bhopalgarh District Jodhpur situated at khasra No. 929 and 930 mentioned in Zamabandhi and sketch map annexed with the writ petition may kindly be removed and the respondents be directed to strictly adhered orders passed by this Hon'ble Court and the Hon'ble Supreme Court earlier." 2. The bone of contention in the present matter is a construction over khasra No. 929 land admeasuring 5-16 bighas recorded as Gair Mumkin Paal and khasra No. 930 land admeasuring 7-16 bighas recorded as Gair Mumkin Nadi, situated besides State Highway Road of Ajmer-Pushkar-Asop-Bhopalgarh-Jodhpur in Village Bhopalgarh (JB); both the khasras are recorded as Government land. 3. Regarding the status of the encroachments, the State Government has filed its reply, relevant portion whereof reads as under:- "That the contents raised in the grounds (1) to (6) are denied in toto. The petitioner has filed the present public interest litigation praying for issuance of direction for removal of illegal construction over Khasara No. 929 and Khasra No. 930 situated besides state highway road of Ajmer-Pushkar-Asop-Bhopalgarh-Jodhpur. It is humbly submitted that in village Bhopalgarh J.B. land admeasuring 7-16 Bhiga is recorded as Gair Mumkin Nadi and land admeasuring 5-16 Bhiga is recorded as Gair Mumkin Pal and both the khasra are recorded as Government land. That it is further submitted that there is no encroachment of any sort in Khasra no. 930. In fact, in Khasra No. 930 the water is collected and to help it restore and maintain in khasra No. 930 for utilization a temporary wall 'Pal' is constructed in khasra No. 929. That upon the said 'pal' a platform is existing used to worship and having sentimental value of the villagers since time immemorial and the same was recently renovated by the villagers and no encroachment was made on the land in question and neither any sort of new construction was raised over the said khasra No. 929. That upon the said 'pal' a platform is existing used to worship and having sentimental value of the villagers since time immemorial and the same was recently renovated by the villagers and no encroachment was made on the land in question and neither any sort of new construction was raised over the said khasra No. 929. The 'pal' is existing on the site in question prior to the settlement exercise and the gravel road has been constructed subsequently but even then the 'pal' is in no manner obstructing the traffic movement or hampering the road in any manner. It is clarified that no allotment has been made in the said khasra's and neither the same will be made in future as the land falls in restricted category. The villagers had placed some stones and other construction material for the renovation of the platform which is existing on the 'pal' since time immemorial and being worshiped by the local villager and having sentimental value." 4. Upon seeing such reply, this Court, vide order dated 20.01.2020, deemed it appropriate to direct the respondent-State to file an additional affidavit, giving out details of the encroachments/construction raised on the land forming part of Paal of the Nadi. The requisite additional affidavit has been filed and the relevant portion of the same reads as under:- "2. That in compliance to the directions issued by the Hon'ble Court vide order dated 20.01.2020, Tehsildar, Bhopalgarh (for brevity hereinafter referred to as respondent no. 4) had directed Patwari, Bhopalgarh to examine the current status of encroachments present on Khasra No. 929 admeasuring 5-16 Bigah recorded as 'Gair Mumkin Paal'. That upon the said direction, Patwari, Bhopalgarh examined the site of khasra No. 929 and submitted the site-report to Tehsildar, Bhopalgarh on 21.01.2020. According to the site-report prepared by the Patwari, a temple of 'Sati Mata' constructed by the Jaat community belonging to the 'Chautiya Gotra' exists on the land recorded as 'Paal' in khasra No. 929. The temple has been renovated and as on date exists on 17 x 17 sq. Ft. Area, whereas the distance between the temple and the highway situated on the east direction of temple is 39 feet when measured from the centre of the highway." 5. The temple has been renovated and as on date exists on 17 x 17 sq. Ft. Area, whereas the distance between the temple and the highway situated on the east direction of temple is 39 feet when measured from the centre of the highway." 5. Learned counsel for the petitioners submits that even if the temple in question was constructed since time immemorial, then also the respondents did not have right to renovate it, thereby broadening and expanding the area of the existing construction. 6. Ms. Rekha Borana, learned Additional Advocate General for the State/respondents and Mr. G.R. Punia, learned Senior Counsel assisted by Mr. Manoj Kumar for the private respondents, however, categorically submit that the temple in question is an old one, and they assured this Court, while giving an undertaking that no further construction, even in the name of renovation, shall be made in the temple in question, and that, the construction made on 17 x 17 square feet area in question shall not be expanded. 7. Upon noticing that the temple in question itself was there since time immemorial, this Court is not inclined to make any interference in the present public interest litigation. However, the undertaking given by the State Counsel and the learned Senior Counsel for the private respondents is recorded, and accordingly, the respondents are directed that no further construction in the 17 x 17 square feet area of the temple in question shall be made, and any further expansion shall remain strictly prohibited. The Pal in question shall be kept encroachment free while keeping the aforesaid direction into consideration. 8. With the aforesaid observations and directions, the present petition stands disposed of. All pending applications also stand disposed of.