Raghunath Mali vs State Of Rajasthan And Ors

This petition is filed by the petitioner seeking directions to the respondents to remove the encroachments made by the respondent No.6 herein on the

public land forming part of road situated at Gram Panchayat Latda, Tehsil Bali, District Pali.

Learned counsel appearing for the petitioner submits that the patta issued by the Gram Panchayat in favour of the respondent No.6 herein stands

cancelled vide order dated 30.10.2017 and the writ petition preferred by the respondent No.6 before this Court questioning the legality of the aforesaid

order dated 30.10.2017 being S.B.Civil Writ Petition No.17011/2017 also stands dismissed by the learned Single Judge vide order dated 20.12.2017. It

is submitted that despite resolution being adopted by the Gram Panchayat for removal of the encroachment made on the land forming part of the road,

the encroachment has not been removed till this date.

In Gulab Kothari vs. State of Rajasthan & Ors.(D.B.C.Writ Petition No.1554/04), this Court while dealing with the issue with regard to

encroachments inter-alia on public road and footpath, observed:

It is well settled that the footpaths and public roads are meant for convenience of public at large and no private person can be allowed to make

unauthorised use of the same for personal use. As a matter of fact, every citizen has right to pass over the footpaths and public ways and custody

thereof with the State and the Local Authorities is in realm of public trust and therefore, what to say of private individuals even, the State Government

and Local Authorities are yoked under an inhibition not to put any structure on footpaths and public ways, which is not necessary for regulating and

maintaining the user thereof. Every inch of the land forming part of footpaths and public ways has to be preserved and maintained meticulously and

therefore, the State Government and the Local Authorities, who are under an obligation to check growth of unauthorised encroachment made by

unscrupulous persons on footpaths and public ways and remove the same, cannot shirk from their responsibility to take the appropriate measures in

this regard.

This Court takes judicial notice of the fact that the tendency to occupy unauthorisedly the land forming part of footpaths and public ways, is

rampant in various cities of the State and one hardly finds enough space on the footpaths and public ways which is creating numerous traffic hazards

and the pedestrians are compelled to move in the midst of vehicular traffic endangering their life. We are constraint to observe that this tendency to

encroach upon the footpaths and public ways amongst the unscrupulous citizens is flourishing because of deleterious inaction and tacit support of the

persons at the helm of affairs in the local authorities.

To conclude, it is high time that the menace of encroachment and unauthorised construction over the footpath and public way is viewed seriously

and dealt with strictly.

In D.B.C.Writ Petition (PIL) No.10819/18 ""Jagdish Prasad Meena & Ors. vs. State of Rajasthan & Ors."", a Bench of this Court at Jaipur with a

view to provide a pan-Rajasthan solution for persisting problem of encroachment on the land of public way, johar paitan, river bed etc., issued

directions as under:

In order therefore to provide a pan-Rajasthan solution to this ever persisting problem, we deem it appropriate to direct the Chief Secretary of the

State to devise a permanent mechanism, which should be operational in every District of the State where the concerned District Collector should be

required to periodically notify for the information of the general public to lodge the complaints/representations with regard to such encroachments with

a specially designated Public Land Protection Cell (for short 'PLPC') for rural areas. The PLPC should be head by District Collector and function

under his direction and supervision. The PLPC shall get such complaints/representations enquired into by deputing concerned Sub Divisional

Officer/Tehsildar/Naib Tehsildar so as to verity whether or not such encroachments have actually taken place on such land. If the allegations are

found to be substantiated, appropriate steps in accordance with law be immediately taken for removal of the encroachments and appropriate penal

action be also taken against the trespassers. The complaints/representations received in the PLPC should be decided by passing speaking order,

informing the respective complainant/representationist about the action taken. This would obviate the necessity of such complainants/representationists

approaching this Court directly by way of public interest litigation. If this practice is put in place, this Court would not be inclined to directly entertain

such public interest litigation or would do so only in the event of inaction on the part of the concerned PLPC.

The PLPC aforementioned shall also keep in view the guidelines issued by the Supreme Court in Jagpal Singh & Others vs. State of Punjab & Others,

(2011) 11 SCC 396 wherein all the State Governments of the country were directed that they should prepare schemes for eviction of

illegal/unauthorised occupants of the Gram Sabha/Gram Panchayat/Poramboke/Shamlat land and the same must be restored to the Gram Sabha/Gram

Panchayat for the common use of villagers of the village. The said scheme should provide for the speedy eviction of illegal occupants, after giving

them a show cause notice and a brief hearing. It was further held therein that long duration of the illegal encroachment/occupation of land or huge

expenditure in making construction thereon or political connections of trespassers are no justification for regularising such illegal occupation.

Regularisation should be permitted only in exceptional cases where lease has been granted under some government notification .e.g. to landless

labourers or members of Scheduled Castes/Scheduled Tribes or where there is already a school, hospital, dispensary, 'shamshan', 'kabristan' or other

public utility of the like nature on the land.

Observations of the Supreme Court in Jagpal Singh (supra) thus leave no manner of doubt that removal of encroachment on all such land is a rule and

regularisation an exception and that too in extremely limited number of cases, which only the Government can do by appropriate notification of the

government and no other authority.

In view of the directions already issued by this Court as aforesaid, no further directions are required to be issued in the instant case. It is open for

the petitioner to make an appropriate representation for redressal of the grievance before the Public Land Protection Cell (PLPC) of District Pali

constituted pursuant to the directions of this Court in Jagdish Prasad Meena's case (supra). Needless to say that the representation to be made by the

petitioner shall be considered by the PLPC objectively and if any encroachment on the public land forming part of road is found, the same shall be

removed expeditiously in accordance with law.

The petition stands disposed of with the observation as above.