Dalla Ram S/o Bhika Ram vs State of Rajasthan

These writ petitions are directed against orders dated

7.12.16 of the Authorised Officer of Jodhpur Development

Authority (JDA), Jodhpur, whereby the unauthorised

occupation of the petitioners over the land comprising khasra

no.94 of village Nandra forming part of public way is directed

to be removed.

Precisely, the case set out by the petitioners is that

lands occupied by them are covered by valid pattas issued by

Gram Panchayat, Banar in their favour under Rule 157 (b) of

Rajasthan Panchayati Raj Rules, 1996. According to the

petitioners, the abadi land in question occupied by them is

situated in khasra no.95 abutting to the road. It is submitted

that while drawing conclusion that the petitioners have

encroached upon the land forming part of the public way

comprising khasra no.94, the respondents have neither

measured the land forming part of the way nor the land

occupied by the petitioners and thus, the conclusion drawn

that the petitioners are in unauthorised occupation of the

land forming part of the public way without any cogent

material on record, is ex facie capricious and perverse.

A reply to the writ petition has been filed on behalf of

the respondents taking the stand that the orders dated

7.12.16 have been passed after giving an opportunity of

hearing to the petitioners. It is submitted that the petitioners

have encroached upon the land forming part of the public

way. It is submitted that it is wrong to contend that no

measurement was made at the site, to the contrary, the

respondent authority visited the site and prepared the site

inspection report which shows that the petitioners have

encroached upon the public land.

Learned counsel appearing for the petitioners contended

that a bare perusal of site inspection report makes it

abundantly clear that the officer concerned has not taken

measurement of the land as also of the plots alleged to be in

unauthorised occupation of the petitioners. Learned counsel

submitted that the order impugned has been passed without

giving any opportunity of hearing to the petitioners and thus,

the action of the respondents is ex facie violative of principle

of natural justice. Learned counsel submitted that the land in

possession of the petitioners is covered by pattas issued by

the Gram Panchayat in their favour and therefore, the

allegation levelled regarding the land being in their

unauthorised occupation is absolutely baseless. Learned

counsel submitted that the village road is only 12 ft. wide

whereas the petitioners plots are situated 35 ft. away from

the road and thus, the land in possession of the petitioners

cannot be treated to be part of the road.

Learned counsel appearing for the respondents have

reiterated the stand taken by the respondents in the reply to

the petition.

I have considered the rival submissions and perused the

material on record.

Indisputably, the petitioners claim to be in possession of

the abadi land comprising khasra no.95 on the strength of

pattas issued in their favour by the Gram Panchayat, Banar.

The allegation of the respondents is that the petitioners are in

occupation of the land comprising khasra no.94, which is

admittedly entered in the revenue record as gair mumkin

gova (road). But then, there is no material brought on record

showing that before declaring the petitioners encroacher over

the land comprising khasra no.94 forming part of the public

way, the measurement of the land comprising khasra no.94

forming part of public way was taken so as to determine the

area of the land alleged to be in unauthorised occupation of

the petitioners. It goes without saying that the land forming

part of the public way has to be kept open for use of the

public at large and even local authority has no jurisdiction

whatsoever under the law to allot the land forming part of the

public way in favour of anybody. In this view of the matter, if

the petitioners have unauthorisedly occupied the land forming

part of the public way, the encroachment made has to be

removed. But then, before taking the action, the respondents

must determine the area of the land forming part of the

public way alleged to be in unauthorised occupation of the

petitioners and the appropriate action for removal of the

encroachment if any, must be taken thereafter in accordance

with law.

Accordingly, the writ petitions are disposed of with the

directions to the respondents to take measurement of the

land forming part of the public way as also the land in

occupation of the petitioners and determine the area of the

land forming part of the public way in unauthorised

occupation of the petitioners if any, after giving them an

opportunity of hearing. After taking the exercise as aforesaid,

if the petitioners are found in unauthorised occupation of the

land forming part of the public way comprising khasra no.94,

the respondents shall be at liberty to remove the

encroachment in accordance with law. The entire exercise in

terms of this order shall be completed within a period of one

month from the date of this order. Till the conclusion of the

proceedings pursuant to the order passed by this court as

aforesaid, the petitioners shall not raise any construction over

the disputed land. No order as to costs.