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2022 DIGILAW 668 (RAJ)

Bherdaan v. State Of Rajasthan

2022-02-24

PUSHPENDRA SINGH BHATI

body2022
JUDGMENT Pushpendra Singh Bhati, J. - In wake of instant surge in COVID-19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in Court, for the safety of all concerned. 2. This writ petition has been preferred claiming the following reliefs: "by an appropriate writ, order or direction, the Enquiry report dated 16.3.2010 (Ann.14) submitted by respondent No. 2, order dated 30.3.2010 (Ann.15) passed by the District Collector, Sri Ganganagar qua the applicants' plots and notices dated 22.4.2010 (Ann.16 and Ann.17) issued by the respondent No. 3 may kindly be declared illegal and be quashed and set aside." 3. Brief facts of this case, as revealed from the record of the case, are that on 20.08.2009, one Vijay Kumar submitted an application/complaint before the District Collector, Sriganganagar seeking a direction for removal of the illegal encroachments from Chak 6 SPM, Tehsil Sardulshahar, District Sriganganagar. Also vide letter dated 07.09.2009, the matter was forwarded by the Government of Rajasthan, Revenue (Colonization) Department, Jaipur to the District Collector, Sriganganagar, for taking the necessary action in the matter. Further, letter dated 18.09.2009 by the Lokayukta Secretariat, Rajasthan, in regard to the same issue, was forwarded for necessary action to the District Collector, Sriganganagar. 4. Vide letter dated 10.09.2009, a letter was addressed by the District Collector, Sriganganagar to the Development Officer, Panchayat Samiti, Sardulshahar, requiring the Development Officer to make the necessary enquiry into the complaint in question, and thereafter, submit a report within a period of seven days thereafter, before the District Collector, Sriganganagar. 4.1. The Development Officer, after concluding the enquiry, enclosed his report with the letter dated 16.03.2010. In the said report, it was mentioned that the allotment of the land in question was not found to be in order, being violative Rule 158 of the Rajasthan Panchayati Raj Rules, 1996, and thus, such allotment is liable to be cancelled. 4.2. Thereafter, vide letter dated 30.03.2010, the District Collector, Sriganganagar, directed the Development Officer, Panchayat Samiti, Sardulshahar to remove the alleged encroachments from the land in question within ten days thereafter, and the information regarding removal of the encroachments be given to the Office of the District Collector. 4.3. 4.2. Thereafter, vide letter dated 30.03.2010, the District Collector, Sriganganagar, directed the Development Officer, Panchayat Samiti, Sardulshahar to remove the alleged encroachments from the land in question within ten days thereafter, and the information regarding removal of the encroachments be given to the Office of the District Collector. 4.3. In pursuance of the aforementioned letter/order dated 30.03.2010, the respondent No. 3 issued notices dated 22.04.2010 to the petitioners and other concerned persons to remove the encroachments from the land in question by themselves within three days thereafter, failing which the gram panchayat shall proceed to remove such encroachments. 4.4. Thus, being aggrieved by the aforementioned orders and notices, the present petition has been preferred before this Hon'ble Court. 5. On 03.05.2010, this Hon'ble Court had passed the following order: "Heard. Admit. Issue notice. Meanwhile, the operation of the order dated 30.3.2010 shall remain stayed and the parties shall maintain status quo with respect to the property in dispute." 6. Learned counsel for the petitioners submits that the petitioners and their families have been in possession of the land in question for more than 50 years, and have also constructed their residential houses on such land, having electricity and water connections since 1992 and 1985 respectively. Learned counsel further submits that the enquiry made by the respondent No. 2 has been made without giving any opportunity of hearing to the petitioners, thus, violating the principles of natural justice. 7. Learned counsel for the petitioners further submits that the impugned order dated 30.03.2010 also is without jurisdiction, as the Collector has no power to order enquiry in the present matter. 8. Learned counsel for the petitioners also submits that the District Collector was not justified in holding that as per the enquiry report submitted by the respondent No. 2, a lay out plan of 6 SPM, Gram Panchayat, Sardarpura Jeevan (approved by the Head Draftsman, Colonisation Department in 1964) was already prepared, and despite that a new lay out plan was made in 1995 in violation of Rule 142 of the Rajasthan Panchayati Raj Rules, 1996. 9. As per learned counsel, the said lay out plan as approved shows that it was prepared in respect of Abadi land of Village Ummewala, and not in respect of land of Chak 6 SPM; thus, on that count also, the impugned order dated 30.03.2010 cannot be sustained in the eye of law. 9. As per learned counsel, the said lay out plan as approved shows that it was prepared in respect of Abadi land of Village Ummewala, and not in respect of land of Chak 6 SPM; thus, on that count also, the impugned order dated 30.03.2010 cannot be sustained in the eye of law. Further, as per learned counsel, by no stretch of imagination, it can be presumed to be proved that the land of Chak 6 SPM of Village Ummewala was an abadi land, and was subject matter of the lay out plan so prepared and approved in 1964. 10. Learned counsel for the petitioners also submits that the enquiry report dated 16.03.2010 of the respondent No. 2 is not only contradictory, but also illegal, as the same has been passed without collecting the necessary evidence and without recording any statement of the material witnesses. As per learned counsel, the impugned action for removal of encroachments is also illegal, in view of the order passed by the respondent No. 3, whereby the action contemplated against the petitioners in relation to the removal of encroachment was dropped. 11. On the other hand, learned counsel for the respondents submits that presently, the urban land of 6 SPM is part of Gram Panchayat, Sardarpura, and earlier to the year 1992, it was part of the Gram Panchayat Mammarkhera; prior thereto, the land was part of Village Ummewala of Gram Panchayat Goluwala. As per learned counsel, while reorganization of Sriganganagar, the said Gram Panchayat Goluwala became a part of District Hanumangarh. Learned counsel thus, submits that the urban land of 6 SPM is adjacent to Village Ummewala, which has now come under the jurisdiction of Panchayat Samiti Pilibanga, District Hanumangarh. 12. Learned counsel for the respondents also submits that preparation of a new map without cancelling the earlier map is against the provisions of Rule 142 of the Rules of 1996, and even the said map was not approved by the competent authority. 13. 12. Learned counsel for the respondents also submits that preparation of a new map without cancelling the earlier map is against the provisions of Rule 142 of the Rules of 1996, and even the said map was not approved by the competent authority. 13. Learned counsel for the respondents further submits that the Gram Panchayat, Sardarpura has issued overall 11 pattas in favour of various persons, including the present petitioners, on the basis of the unapproved map, out of them 3 pattas were issued under Rule 157 of the Rules of 1996 for regularization of the land in question and 8 pattas were issued for making concessional allotment under Rule 158 of the Rules of 1996. The said allotment, as per learned counsel was found to be erroneous, being violative of Rules 148, 149, 157 and 158 of the Rules of 1996. 14. Learned counsel for the respondents thus submits that the impugned orders including the order dated 30.03.2010 (passed on the basis of the inquiry report submitted by the Panchayat Samiti, Sardulshahar), whereby the respondent No. 2 was directed to initiate proper legal action against the persons, who have been issued pattas in violation of the provisions of the law, are perfectly justified. 15. After hearing learned counsel for the parties as well as perusing the record of the case, this Court finds that the impugned orders were passed after adopting the due procedure as provided under the law. This Court also finds that the respondents, after making the necessary enquiry into the matter, passed the impugned orders, while holding the petitioners as encroachers upon the land in question. 16. It is a settled legal position that the encroacher has no right to hold the land in any manner whatsoever, and thus, in the opinion of this Court the respondents authorities have not committed any error or illegality in passing the impugned orders. 17. In view of the above, this Court does not find it a fit case so as to warrant any interference under the writ jurisdiction of this Court. 18. Consequently, the present petition is dismissed. All pending applications stand disposed of accordingly.