Remanded

Smt Nathi and Anr. v. State of Raj and Ors.

Rajasthan HC3 Aug 2011CW/845/2011

Case brief

AI extract

What is this about?

The Single Judge quashed the Collector's order rejecting a petitioner's representation. The Judge remanded the matter to the Principal Secretary to independently decide on the land allotment and water flow objections, staying construction during the review.

What did the court decide?

Order remanded to Principal Secretary to decide objections; construction stayed at disputed site.

Smt Nathi and Anr. Vs State of Raj and Ors. — Municipal and Town Planning | Rajasthan HC (2011)

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CWP No.845/2011

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR

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O R D E R

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S.B. Civil Writ Petition No.845 of 2011. Smt. Nathi wife of Shri Nagar Mal and another VERSUS

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The State of Rajasthan and Others

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Date of Order :::: 03.08.2011.

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Hon'ble Mr. Justice Dalip Singh

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Mr. Rakesh Kumar Sharma and Mr. Amit Kr. Soni, Counsel for the Petitioners Mr. Jinesh Jain, Govt. Counsel for the Respondents

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By the Court :

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This writ petition has been filed in second round before this Court. The petitioner had earlier approached this Court by means of S.B. Civil Writ Petition No.14344/2010, which came to be decided vide order dated 29.10.2010. In the earlier writ petition also the apprehension, which was raised was with regard to constructions of the Rajeev Gandhi Seva Centre in Village Panchayat, Tamkore District Jhunjhunu on the disputed site, which is Khasra No.687 and objection, which had been raised was that as a result of aforesaid construction and subsequent construction liable to be come up in future as a result of development of the area the inflow of water into the tank [talaab] would be obstructed resulting in drying up of the water resources to the Village.

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Vide order dated 29.10.2010, learned Single Judge taking note of the aforesaid objections directed as follows : “Without going into merits of the case but on

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CWP No.845/2011

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perusal of the record available, this Court considers it appropriate to direct the petitioner to make a fresh representation to the Principal Secretary, Panchayati Raj Department within one month and if such a representation is made it is expected from the authority to examine the same independently as to whether the land has rightly been allotted in accordance with law for construction of Rajiv Gandhi Seva Centre vide order dt.19.07.2010 by the Collector, Jhunjhunu and may pass speaking order within one month thereafter. The decision may also be communicated to the petitioners who if still feel aggrieved will be at liberty to avail the remedy under law.

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With these directions/observations, the petition stands disposed of.”

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After the aforesaid order was issued, the petitioner submitted a representation, Annexure-8, wherein the petitioner clearly pointed out their objections with regard to the proposed site of Khasra No.687 and specific objection was taken with regard to obstructions to the flow of water into Tank, which is the only source of water in the Village.

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The representation is available on record at Page No.39 onwards, as Annexure-11. The objections with regard to obstructions of the flow of water into the tank are available at Page No.41 to 43.

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It is the grievance of the petitioner that despite the aforesaid objections having been raised in the representation, which was submitted by the petitioner after the order of this Court to the Principal Secretary, the Principal Secretary, who was required to decide the matter as per directions of this Court

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CWP No.845/2011

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a fresh, delegated the aforesaid functions to the Collector and the Collector passed the order, Annexure-13 rejecting the aforesaid representation on 13.12.2010. Hence, the present writ petition.

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The objection is that the learned Single Judge had in the order dated 29^th October, 2010 directed the petitioners to file a fresh representation before the Principal Secretary, Panchayati Raj Department and it was made clear that “it is expected from the authority to examine the same independently as to whether the land has rightly been allotted in accordance with law for construction of Rajeev Gandhi Seva Centre vide order dated 19.07.2010 by the Collector, Jhunjhunu and may pass speaking order within one month thereafter.”

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The objection, which has been raised is that the Principal Secretary did not take any decision on the representation submitted by the petitioners against the order of the Collector dated 19.07.2010 and instead delegated the said power to the Collector, whereas the learned Single Judge had clearly directed that the Principal Secretary was to decide the matter whether or not the constructions of the Rajeev Gandhi Seva Centre vide order dated 19.07.2010 by the Collector, Jhunjhunu had been raised in accordance with law. Therefore, there was no question of the Principal Secretary to have again referred the representation to the Collector for decision against the order of the Collector dated 19.07.2010.

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CWP No.845/2011

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So far as the aforesaid submission is concerned, I find considerable force in the submission of the learned counsel for the petitioner.

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The learned Single Judge had directed the petitioner to submit a fresh representation before the Principal Secretary and the Principal Secretary was to take a decision in the matter with regard to correctness or otherwise of the order dated 19.07.2010 passed by the Collector, Jhunjhunu.

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Thus, in the light of the aforesaid, the Principal Secretary could not have delegated this function to the Collector whose action itself has been called in question before this Court earlier.

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Apart from above, the main grievance of the petitioner, who is a resident of Village is with regard to obstruction of the flow of water in the tank and a bare perusal of the order dated 13.12.2010 passed by the Collector goes to show that there is virtually no consideration of the matter on the aforesaid question as to whether or not the constructions of Rajeev Gandhi Seva Centre would hamper the flow of water in the tank and taking into consideration the future growth and the development of area as a consequence thereof would obstruct the flow of water into the tank after the said Kendra has come up.

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Accordingly, the matter is remanded back to the Principal Secretary, Panchayati Raj Institution, Government of

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CWP No.845/2011

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Rajasthan to take a decision with regard to the objections submitted by the petitioner in their representation, Annexure-11 submitted before him on 02.11.2010 and decide the matter, as directed by this Court in the order 29.10.2010 afresh.

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The decision be taken by the Principal Secretary within two months. Till the decision is taken by the Secretary, the constructions of the Rajeev Gandhi Seva Centre shall remain stayed at the disputed site.

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Consequently, the writ petition as well as stay application stand disposed of as aforesaid.

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(Dalip Singh) J.

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Ashok/

Smt Nathi and Anr. v. State of Raj and Ors.

Case brief

What is this about?

What did the court decide?

Smt Nathi and Anr. v. State of Raj and Ors.

Case brief

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What did the court decide?

What the court decided

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