K.K. Shah vs State of Rajasthan and Others

The petitioner, a retired officer of the Indian Air Force and practicing advocate of the Rajasthan High Court, has preferred this petition for writ to have a writ order or direction issued to respondent State of Rajasthan to remove illegal encroachments made in the forest land near Air Force Radar Station at Kaylana in District Jodhpur. As per the petitioner, the Indian Air Force has established a Radar Station at Kaylana Hills in Jodhpur to keep vigil at entire western border of the country. It is submitted that at the time of establishment of Radar by the Air Force in Kaylana Hills the entire area was not having any population and was quite an ideal location strategically, however, by the flux of time a good number of people are trying to enter into the area concerned due to development and expansion of the Jodhpur City. The Government of Rajasthan apprehending damage to the environment and ecology, declared the area concerned as reserve forest. Suffice to mention that a chunk of land from this area was set apart and was allotted to the Indian Air Force to continue with its activities affiliated with Radar.

The grievance of the petitioner is that several private persons have made encroachments in the forest area and i.e. adversely effecting environment, ecology and is also causing a threat to the security measures taken by the Indian Air Force. The Principal Chief Conservator of Forest, Van Bhawan, Jaipur, under a letter dt. 6.8.2003 apprised the State Government about the encroachments made in the area concerned with names of officials responsible for negligence with a direction to the Chief Conservator of Forest, Jodhpur to initiate disciplinary action against such officials, but of no consequence. The petitioner pointed out certain encroachments made in the forest area including a Community Hall, certain temples and a ''Bhojanshala'' near a religious place "Bheem-Bhadak".

In pursuant to the notice issued by this Court, a reply to the writ petition is preferred on behalf of the respondents No. 1 to 5 with assertion that the Radar Station of Indian Air Force was constructed on the land measuring 202 bighas 10 biswas and the area concerned is under exclusive possession of the Indian Air Force. No complaint from the Air Force authorities is ever received about any illegal activities in the aforesaid area. However, an inquiry was conducted about the encroachments said to be made in the forest and as per that certain encroachments were found. The details of such encroachments is as under:--

A reply to the writ petition has also been filed on behalf of the respondent No. 6 i.e. the Union of India through the Commanding Officer, 33 Signal Unit, Air Force c/o 56 APO. As per the reply filed on behalf of the respondent No. 6 the Air Force is having no authority either to identify or stop the encroachments coming up in the periphery or near vicinity of the Air Force land. The Air Force Station, Kaylana is a prohibited area as per Section 3(3) of the Defence Act and an area of 100 meters from the boundary of Air Force Station, Kaylana is also an area prohibited. No construction by any private person or encroachment has been made in the prohibited area. However, the possibility of infiltration cannot be ruled out in view of the fact that several persons used to visit/reside at the temples and Community Hall constructed or already existing nearby the Air Force land. It is also submitted that neither the police nor any other civil agency is checking the visitors/residents of the area concerned. A need of extra vigilance in the area is emphasised by the force.

This Court by an order dt. 23.1.2013 directed learned Additional Advocate General to submit Tehsildar''s report disclosing complete topography of the area involved and the structures therein. The report called for was submitted on 15.4.2013. A further direction was given on 13.5.2013 to have a joint survey of the area by the authorised representatives of the respondents No. 1 to 5 and the respondent No. 6. The respondents were directed to identify and convey to each other the names of their representatives who would conduct the joint survey and further to submit a report to the Court by 24.5.2013. A joint survey report has not been submitted so far, however, "Counter Submissions on behalf of respondents in pursuance to Hon''ble Court''s order" is placed on record on 29.5.2013. In the counter submissions aforesaid it is submitted that a joint survey was made in the year 2011 and as per the survey report the Indian Air Force is having possession of 35 bighas of land in excess. Learned Additional Advocate General during the course of arguments further pointed out the encroachments made by some "Jal Bhagirathi Foundation", near Bijolai and by certain other private persons close to the government road connecting Kaylana Lake to the Air Force Radar area.

Suffice to mention that an application is also preferred on behalf of one Shri Shyam Lal Bhati son of Shri Anant Ram Bhati resident of 12, Kishore Sadan, Masooria, Sector-2, Pal Road, Jodhpur, to join the writ proceedings as respondent. It is submitted in the application that the applicant is a devotee and follower of "Hans Nirwan Sampraday" and is worshiper of Lord Shiva. He is also a Manager of Mahatma Sampurnanand Ashram, Bheem Bhadak. Mahatma Sampurnanand devoted his life at Bheem Bhadak as an ascetic and breathed last on 9.7.1991. Mahatma Sampurnanand in his life time created a trust in the name of "Mahatma Sampurnanand Ashram", Bheem Bhadak, Jodhpur. Bheem Bhadak, as per the applicant, is a religious place and is having a cave in the length of about 150 feet under a rock. The rock is existing since time immemorial and in 18th century during the period of erstwhile ruler of Marwar Late Shri Takhat Singh necessary development/improvement of the cave took place and thereafter regular "Abhishek" of Lord Shiva is performed by devotees. The temple aforesaid is situated in the forest area of Kaylana. As per the applicant the Air Force authorities and the Forest Department are creating unnecessary interference in open entry to the cave of Bheem Bhadak where Shiva temple is also situated.

On consideration of the facts stated above, the admitted position emerges out is that -

"1. there are certain old temples in the forest area concerned;

a huge part of land measuring 202 bighas 10 biswas was allotted to Indian Air Force to establish its Radar to keep vigil at western border;

the area allotted to the Indian Air Force with an extension of 100 meters in its complete periphery is a prohibited area as per Section 3(3) of the Defence Act;

after declaration of the area concerned ("Bada Bhakhar Forest Area") as reserve forest, several encroachments were made by private persons and they also raised construction illegally; and

the Government of Rajasthan alleged encroachment over land about 35 bighas by Indian Air Force also."

Having considered these facts by an order dt. 31.5.2013, this Court issued directions for respondents No. 1 to 5 as under :--

"1. All necessary care should be taken for not having any further encroachment in the area concerned;

The commercial activities, if any, is going on within the forest area in contravention of law, then the same is required to be stopped forthwith;

All the encroachments and constructions made by private persons in the forest area after its declaration as reserve forest be removed expeditiously in accordance with law;

No person except the persons authorised by law shall be permitted to reside in the forest area concerned;

The respondents including the respondent No. 6 are directed to provide a passage to the devotees to visit the temple situated at Bheem Bhadak during the day hours i.e. during the period of sunrise to sunset. The respondents shall be at liberty to take necessary measures to maintain security and safety of the Air Force area while granting such permission.

The Department of Forest, Government of Rajasthan and the Indian Air Force shall resolve their dispute about alleged encroachment of forest land by the Air Force. If any encroachment made by the Air Force is established, then the Air Force either shall vacate that area or shall take appropriate steps to get that regularised in accordance with law."

A compliance report was submitted by the respondents on 6.1.2014 and as per that the Chief Conservator of Forest (respondent No. 4), under a communication dt. 19.07.2013 directed the Deputy Conservator of Forest concerned to restrain further encroachment on the forest land, that is subject matter of the present petition for writ. The Deputy Conservator of Forest in his turn issued another communication dt. 19.07.2013 and an order dt. 22.07.2013 directing all the officials relevant to ensure that no further encroachment be made on the forest land. The communications aforesaid are made in pursuant to the direction No. 1 given under the order dt. 31.05.2013. It is also stated that the Regional Forest Officer, Mandore directed and ordered to ensure that no commercial activity should be permitted on the forest land or in the nearby area of the radar station and at present no such activity is taking place. Necessary measures are also taken to check any possibility of reoccurrence of such activities. No private person has been allowed to raise any construction or to make encroachment in the forest area and the construction existing is of the temples, which were situated prior to declaration of the area concerned as forest area and prior to coming into force of the Forest conservation Act, 1980. Suffice to mention here that the Forest Conservation Act, 1980 came into force on 27.12.1980 and the area concerned was declared as forest area under a notification dt. 05.11.1992. It was also conveyed to the Court that the Indian Air Force is having possession over about 35 bighas of land in excess to the land allotted to it by the State Government, but identification of the land said to be having in excess was not made.

An application in the instant matter is also preferred by H.H. Maharaja Hanwant Singh Ji Charitable Trust to join writ proceedings as respondent with assertion that it is having its own property at Bijolai and the authorities of the Forest Department are insisting to close down all activities therein pursuant to the directions given by this Court. We are not inclined to permit the applicant to join these proceedings as respondent, as the application aforesaid is based on the rights which are to be settled in a writ petition preferred by the applicant and is pending consideration before a Single Bench of this Court.

Having considered facts of the case and the arguments advanced, we are of the opinion that the directions given by this Court on 31.5.2013 deserve to be made absolute. The directions aforesaid appears to be adequate to meet with the cause agitated in this petition for writ. Accordingly, the writ petition is disposed of by making the directions given under the order dt. 31.5.2013 absolute. The petitioner or any other public spirited person shall be at liberty to re-agitate the cause by submitting an application, if any person/party act in contravention of the directions given above or makes any effort adversely effecting spirit of the order.