A writ petition challenged the allotment of Gair Mumkin Agore land for village extension. The court held the order void, quashed it, and directed allotment from permissible land.
Writ petition allowed; impugned allotment order quashed; no construction allowed; District Collector directed to allot fresh land from permissible category.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
D.B. Civil Writ Petition No. 16081/2021
----Petitioners
Versus
For Petitioner(s) : Mr. L.D. Khatri For Respondent(s) : Mr. Sunil Beniwal, AAG Mr. I.R. Choudhary
HON'BLE MR. JUSTICE SANDEEP MEHTA HON'BLE MR. JUSTICE KULDEEP MATHUR
Order
15/12/2022
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[CW-16081/2021]
Through this writ petition in the nature of public interest litigation, the petitioners herein have approached this court for assailing the legality and validity of the order dated 11.07.1992 passed by the District Collector, Barmer, whereby land admeasuring 5 bighas from Khasra No.155 of Mauja Patasar categorized as Gair Mumkin Agore was set apart for Aabadi extension of the Village Gram Bagawas and the consequential attempt of the Gram Panchayat in trying to raise construction of permanent structures on this land.
Learned counsel Mr. L.D. Khatri, representing the petitioners, placed reliance upon the judgment dated 01.04.2021 rendered by a Division Bench of this court in the case of Shambhu Ram Vs. State of Rajasthan & Ors. [D.B. Civil Writ Petition No.10457/2018] and urged that land forming part of Gair Mumkin Agor, i.e. catchment, cannot be permitted to be divested to any other use and such allotment of part of this land for extension of Aabadi is grossly illegal.
In the reply filed on behalf of the State Government, the fact that the 5 bighas of land for extension of Aabadi of Gram Panchayat Patasar was carved out from a restricted category land, i.e. Gair Mumkin Agore, is not disputed. However, an objection is raised that the writ petition has been filed after significant delay and hence the same should be dismissed.
To this objection of delay, learned counsel Mr. L.D. Khatri, representing the petitioners, submitted that as the construction activities by way of digging up the foundations was started only in the year 2021, the petitioners applied for the relevant record and for the first time, they came to know of the order dated 11.07.1992. He submitted that other than digging up
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[CW-16081/2021]
a few foundation trenches, no civil construction work has been made on the land in question, which is prohibited for any other use except catchment. Thus as per Mr. Khatri, construction activities on such land is prohibited by law and delay cannot be a ground to throw out the genuine challenge laid by the petitioners to the impugned order, which is void in the eyes of law.
Mr. Sunil Beniwal, learned AAG, and Mr. I.R. Choudhary, learned counsel representing the Gram Panchayat, are not in a position to dispute the fact that law is well-settled by catena of decisions rendered by Division Bench of this court including the judgment in the case of Shambhu Ram, wherein it has been affirmatively held that the land categorized as Gair Mumkin Agor cannot be divested for any other purpose.
In this background, there is no option, but to declare that the impugned allotment order dated 11.07.1992 is de hors the provisions of law and void on the face of the record. Hence, the same is quashed and set aside. No construction activity shall be allowed on the land in question. At the same time, the District Collector, Barmer is directed to consider allotment of a fresh chunk of 5 bighas land to the Gram Panchayat concerned from permissible category land, which would include Gair Mumkin Gochar (after due accountance for compensation as per the Rules) so as to facilitate Aabadi extension and construction of the public service utility institutions.
The writ petition is allowed, accordingly.
No order as to costs.
(KULDEEP MATHUR),J
(SANDEEP MEHTA),J
43-Pramod/-
1 issue framed by the court
Whether allotment of Gair Mumkin Agore land for Aabadi extension is legally valid.
Colour shows how this judgement treated each authority
Shambhu Ram Vs. State of Rajasthan & Ors.Relied on¶24
Shambhu Ram Vs. State of Rajasthan & Ors. [D.B. Civil Writ Petition No.10457/2018]
Likhama Ram Choudhary
Lalu Ram
Mahendra Dhaka
Nema Ram
Khiya Ram
State Of Rajasthan
SANDEEP MEHTA
KULDEEP MATHUR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
