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Judgment
Heard learned counsel for the parties. Perused the material available on record.
By way of this writ petition, the petitioner Gopal Menariya has approached this Court assailing the communication dated 06.12.2017 (Annexure-19)
issued by the Dy. Conservator of Forest, Udaipur whereby, the District Magistrate, Udaipur was advised not to issue NOC for establishment of petrol
pump on Khasra No.7172/6466, Revenue Village Kaya, Tehsil Girwa and also to direct issuance of an NOC to the petitioner for establishing a petrol
pump on the land in question.
Facts in brief are that the petitioner purchased the land in question located at the Revenue Village Kaya, Patwar Circle Kaya from Shantilal son of
Gamer Lal through a registered sale deed. The land in question identified as Araji No.3103 was admeasuring total of 12.3400 hectares. After
settlement, the new number 6466/1 was assigned to the land. The land passed through various hands. Finally Shantilal son of Gamer Lal sold his share
of the subject chunk of land to the petitioner by way of a registered sale deed. The 9 bighas of the original Araji No.3103 had been regularised in the
name of Dhanraj by the Additional Tehsildar, Girwa by order passed in Missal No.4967/69 in the year 1969. The corresponding Jamabandi entries
have been placed on record by the petitioner as Annexure-3 and 4 respectively. While making the new settlement, the entire 9 bighas of land
regularised in favour of Dhanraj was erroneously and inadvertently entered in the name of the Forest Department whereupon, Shri Dhanraj, filed a
suit under Sections 88, 188 and 63(4) of the Rajasthan Tenancy Act. The suit filed by Dhanraj was dismissed by the Additional District Collector vide
judgment dated 30.06.2001. Dhanraj challenged the said judgment before the Revenue Appellate Authority, Udaipur which allowed the appeal vide
judgment dated 28.01.2003 and declared Dhanraj to be the khatedar of the land admeasuring 9 bighas comprising of old Araji No.3103 and new Araji
No.6466. The said judgment of the Revenue Appellate Authority was reportedly not challenged any further and thus, the same has attained finality.
Pursuant thereto, the land was transacted in the manner stated by the petitioner at paras Nos.3 and 4 of the writ petition. After the petitioner had
purchased the land from Shri Dhanraj, a new Araji No.7172/6466 min was assigned to the said parcel of land and the entries thereof have been
recorded in the revenue record and the revenue map as well. The petitioner was desirous of establishing a petrol pump on this land. Accordingly, he
applied for conversion thereof before the UIT, Udaipur which has issued a conversion order dated 23.10.2017 in favour of the petitioner after charging
the requisite conversion fee, compounding charges, etc. The petitioner thereafter, submitted an application to the BPCL for establishing a retail outlet
dealership on the subject partial land located between Kaya and Tidi villages on NH-8 Udaipur. The BPCL requested the Additional District
Magistrate, Udaipur to issue NOC for establishment of a petrol pump on the aforesaid land. The Additional District Magistrate, Udaipur issued a letter
dated 18.07.2017 to all the concerned departments seeking their consent for issuance of the NOC. The petitioner claims that consent was sought from
9 departments including the Forest Department, whereas the 8 other departments have given their consent for establishment of the petrol pump on the
petitioner’s land but the Forest Department has raised an objection with an assertion that the land in question is notified as a reserve area for the
forest division of Harniyamai Dagal and that establishment of a petrol pump thereon is purely a non-forest activity which is impermissible by law.
Thereupon, the petitioner has approached this Court by way of this writ petition seeking to assail the impugned communication dated 06.12.2017.
The respondent Forest Department has a filed detailed reply to the writ petition wherein, certain notifications for declaration of the area in question as
forest land have been annexed. However, it is pertinent to state here that in none of these notifications, the particulars of the disputed chunk of land
owned by the petitioner are mentioned.
The Forest Department has placed reliance on the notification (Annexure-R/1) dated 21.11.1957 to build up an argument that the land in question has
been declared as a forest area but on the contrary, the petitioner has submitted a counter affidavit mentioning therein that the notification dated
21.11.1957 annexed with the reply only conveys the intention of the respondents to include some lands of Tehsil Girwa in the protected/reserved forest
area. The petitioner has attempted to draw much water from the insignificant fact that no decision has been taken by the respondents to acquire and
include the land of Araji No.3103 in the protected forest area which was regularised in favour of Shri Dhanraj way back in the year 1969.
Shri Mankad, learned counsel representing the petitioner submitted that the notification (Annexure-R/1) dated 21.11.1957 was just issued for making
publication of the intention of the Government to include certain lands in the forest area. The final notification of inclusion of certain chunks of lands in
protected forest area was published in the Rajasthan Gazette on 01.06.1997. In the said notification also, the land comprising of Araji No.3103 was not
included. If at all, the respondents intended to include the said piece of land in the protected forest area then, they were under an obligation to acquire
the same as per law. Shri Mankad drew the Court’s attention to the order dated 28.01.2003 passed by the Land Records Officer-cum- Revenue
Appellate Authority, Udaipur in Appeal No.249/2001 filed by Dhanraj which was duly contested by the Forest Department. While adjudicating the
matter, the Revenue Appellate Authority held that 9 bighas of land owned by Dharaj was not a part of the forest land and that his name be entered as
a khatedar in the revenue record.
At this stage, the following findings recorded by the Revenue Appellate Authority in its order dated 28.01.2003 which have attained finality need a
reference:-
^^vc izâ€u ;g mBrk gS fd D;k lkfcd vkjkth uacj 3103 dh Hkwfe dk og 9 ch?kk Hkkx tks vihykUV ds i{k esa o’kZ 1969 esa ukekUrdj.k gqvk gS]
D;k og Hkw&Hkkx gky uacj 6466 dk gh gSA bl lUnHkZ esa gekjs lEes[k bZ-,Dl- 2 dh udy feyku {ks=Qy ls ;g lkfcr gksrk gSA vr% gky vkjkth [kljk
uacj 6466 jdck 12-3400 gSDVj Hkwfe esa ls 9 ch?kk] ftldk eSfVªd iz.kkyh esa jdck 1-9500 gSDVj curk gS] og vihykUV dh Hkwfe gSA bl rjg ;g
okn fcUnq Hkh cgd oknh r; fd;k tkrk gS D;ksafd Lo;a ou foHkkx ds }kjk izLrqr nLrkostksa ls ;g Li""V gks pqdk gS fd lkfcd [kljk uacj 3103 esa ls ou
foHkkx dks 105 ch?kk 15 fcLok Hkwfe blh [k-ua- 3103 esa vihykUV dh 9 ch?kk ls vyx gSA**
Shri S.R. Paliwal, Dy. Govt. Counsel representing the Forest Department was unable to dispute the pertinent contention of Shri Mankad that the
Revenue Appellate Authority has conclusively held in its judgment that the 9 bighas of land owned by Dhanraj is distinct from the forest area and falls
beyond the periphery thereof.
In this background, this Court is of the firm opinion that the communication dated (Annexure-19) 06.12.2017 whereby, the Forest Department has
expressed its opposition and resistance to the issuance of NOC for commissioning of a petrol pump on the petitioner’s land does not stand to
reasoning and is without any foundation. The impugned order, apart from being grossly illegal, and arbitrary, infringes upon the petitioner’s
fundamental right to do trade on his own land and thus, has to be struck down.
Accordingly, the writ petition deserves acceptance and is hereby allowed. The impugned order /communication (Annexure-19) dated 06.12.2017
issued by the Dy. Conservator of Forest, Udaipur is hereby quashed and set aside. The Deputy Conservator of Forest, Udaipur is directed to forthwith
and not later than within a period of two months from today issue the NOC for setting up petrol pump on the land in question in terms of the Letter of
Intent.
The stay application is disposed.
No order as to costs.