Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2019 Supreme(Raj) 1020

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
ASHOK KUMAR GAUR, J.
Govind Son Of Shivlal – Appellant
Versus
The State Of Rajasthan – Respondent
S.B. Civil Writ Petition No.20833, 20838, 20831, 20832, 20837, 20839, 20861, 20863, 20883, 20504, 20505, 20506, 20507, 20508, 20510 of 2019
Decided on : 11-12-2019

Advocates:
Advocate Appeared:
For the Petitioner: Mr. Rajneesh Gupta, Mr. Manoj Bhardwaj, Mr. T.L. Pandey, Adv.
For the Respondent: Mr. Rajesh Maharshi, Mr. Apoorv Gupta, Adv.

The necessity of affording the petitioners an opportunity to explain their occupation of the land/construction before any action is taken, compliance with NGT orders, and the validity of the alleged encroachments.

Headnote:
Encroachment - Public Works Department - The court directed 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.
Fact of the Case:

The petitioners challenged notices issued by the Assistant Engineer, Public Works Department, Sub-Division, Kaila Devi, District Karauli, asking them to remove construction/encroachment within seven days.
Finding of the Court:

The court directed the respondents to serve notice on the petitioners under Section 91 of the Rajasthan Land Revenue Act and allowed the Competent Authority/Tehsildar to pass appropriate orders after affording the petitioners an opportunity to explain their occupation of the land/construction.
Issues: The issues revolved around the lack of opportunity given to the petitioners before the notices were issued, the compliance with NGT orders, and the validity of the alleged encroachments.
Ratio Decidendi: The court found that the petitioners should have been given an opportunity to explain their occupation of the land/construction before any action was taken. It also emphasized the need for compliance with NGT orders and the validity of the alleged encroachments.
Final Decision: The court directed the respondents to serve notice on the petitioners under Section 91 of the Rajasthan Land Revenue Act and allowed the Competent Authority/Tehsildar to pass appropriate orders after affording the petitioners an opportunity to explain their occupation of the land/construction. It was made clear that the alleged encroachment/construction of the petitioners will not be removed/demolished until proceedings are concluded by the Tehsildar under Section 91 of the Rajasthan Land Revenue Act.

Judgement Key Points

The court mentioned that the procedure to be adopted by the Tehsildar includes giving a notice to the persons in illegal possession or encroachments, and after the survey report is prepared, necessary action will be taken to earmark the encroachments. This implies that the demarcation of the land will be carried out after the survey report is prepared, and the process involves identifying and marking the land in question before any final orders are issued or actions are taken (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) .

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. 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 unde

Click Here to Read the rest of this document