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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
ARUN BHANSALI, ASHOK KUMAR JAIN, JJ.
State of Rajasthan – Appellant
Versus
Gopal Menariya S/o Shri Tulsiram Menaria – Respondent
D.B. Special Appeal Writ No. 6 of 2020
Decided On : 23-02-2023
Rajasthan Tenancy Act, 1955 - Sections 88, 188 63(4) - Forest Act, 1953 - Section 4, 5 - Forest land - Setting up petrol pump on land - Petition filed by respondent has been allowed and impugned order issued by Deputy Conservator of Forest, has been quashed and he has been directed to issue NOC for setting up petrol pump on land in question – It was established that land in question indeed form part of forest land.
Finding of the Court :
It was established that land in question indeed form part of forest land, however, as a fact it has been found by Revenue Appellate Authority that land in question did not form part of forest land, plea sought to be raised, cannot be accepted unless order passed by Revenue Appellate Authority was questioned by way of appropriate proceedings - No direction could have been granted regarding issuance of NOC by learned Single Judge, also apparently has no basis, inasmuch as, once it was found by learned Single Judge that land in question is not part of forest land, locus standi of Forest Department on basis of which objection was raised, came to an end and no other objection was raised by Forest Department in its communication to District Magistrate and, therefore, plea raised in this regard also has no basis.
Result: Appeal dismissed.
JUDGMENT :
ARUN BHANSALI, J.
1. This appeal is directed against the judgment dated 16.11.2018 passed by learned Single Judge in SBCWP No. 16879/2017, whereby, the writ petition filed by respondent has been allowed and the impugned order/communication (Annex.19 with the writ petition) dated 6.12.2017 issued by the Deputy Conservator of Forest, Udaipur, has been quashed and set aside and he has been directed to forthwith and not later then within period of two months issue the NOC for setting up petrol pump on the land in question in terms of letter of intent.
2. The writ petition was filed by the respondent-petitioner with the averments that he had purchased the land ad-measuring 0.4875 hectare from one Shanti Lal in revenue village Kaya Patwar Circle Kaya, Tehsil Girwa, Udaipur, vide registered sale deed dated 4.8.2018. It was claimed that originally the Arazi number of the land was 3103 and its total area was 12.3400 hectares, after settlement the new Arazi Number of the land was 6466, land admeasuring 1.9500 hectare was regularized in name of one Dhanraj out of the 12.3400 hectares of land of Arazi No. 3103.
3. It was indicated that the said parcel of land was entered as Arazi No. 6466/1. The land thereafter changed hands and ultimately a part of the said land ad-measuring 0.4875 hectares out of Khasra No. 6466/1 was transferred to petitioner by one Shanti Lal vide sale deed dated 4.8.2014. It was inter alia claimed that the said land ad-measuring 9 Bigha in Arazi No. 3103 was regularized by the Additional Tehsildar Girwa vide Missal No. 4967/1969 in the year 1969, however, on account of mistake of the Revenue Department despite regularization in favour of Dhanraj, in the revenue record the land was included in the land belonging to the Forest Department. Mr. Dhanraj filed a suit before the Additional District Collector, Udaipur, under Sections 88, 188 63(4) of the Rajasthan Tenancy Act, 1955 (‘the Act of 1955’) seeking declaration regarding the ownership and possession of the land and permanent injunction.
4. The suit, after contest, was dismissed by the Additional District Collector by judgment dated 30.6.2001.
5. Feeling aggrieved, Dhanraj filed appeal before the Revenue Appellate Authority, Udaipur.
6. The Revenue Appellate Authority by its judgment dated 28.1.2003 accepted the appeal, set aside the judgment dated 30.6.2001 and declared Dhanraj as Khatedar of the land in Khasra No. 6466. The said judgment of the Revenue Appellate Authority was not questioned by the respondents and the land continued to remain recorded in terms of the declaration in the name of the transferees from Dhanraj.
7. After purchase of land, the petitioner being desirous to establish a petrol pump applied for conversion of land with Urban Improvement Trust, Udaipur, which was converted and allotted to the petitioner. The petitioner submitted an application to Bharat Petroleum Corporation Ltd. (‘BPCL’) for establishing a retail outlet and letter of intent dated 8.2.2017 was issued. BPCL applied to the Additional District Collector, Udaipur, for No Objection Certificate for establishment of petrol pump on the said land.
8. The Additional District Collector sought No Objection from 9 departments including the Forest Department. Each department issued NOC, however, the Forest Department refused to issue NOC. In the meanwhile, on account of purchase by the petitioner, in the revenue record the portion of land purchased by the petitioner was given Arazi No. 7172/6466. It was also indicated that the Forest Department by its communication dated 6.12.2017 (Annex.19) indicated to the District Magistrate that as per the joint site inspection report dated 24.8.2017 of the Assistant Forest Conservator, Udaipur, Regional Forest Officer, Udaipur and Serveyor, the applied land is part of notified forest division Harniyamai Dagal and as the applied area is that of forest, no commercial activities be permitted.
9. Feeling aggrieved, the writ petition was filed by the petiti
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