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Judgment
Mohammad Rafiq, J.—Writ Petition No. 16836/2012 seeks to challenge judgment dated 12.10.2012 of learned Appellate Tribunal, Jaipur Development Authority, Jaipur in appeal No. 37/2012, and Writ Petition No. 1814/2012 seeks to challenge inaction on the part of respondents in not considering the application of petitioners for allotment of land in question. Petitioners filed an appeal before Appellate Tribunal, Jaipur Development Authority, challenging notice dated 13.02.2012 issued to them u/s 72 of the JDA Act. In the notice it was stated that petitioner had encroached upon pasture land measuring 8247 square meter of Khasra No. 526, village Jugalpura, Jaipur-Chandwaji Road, within the territory of Jugalpura village. Learned Tribunal has dismissed the appeal of the petitioner on 12.10.2012 holding that the measurement report dated 11.09.2012 has found the petitioner to have encroached upon the pasture land measuring 8125 square meter, although notice to the extent of 122 square meter has been set aside, that means that appeal was allowed to that extent Aggrieved thereby, petitioner is before this Court in Writ Petition No. 16836/2012.
Heard learned counsel for the parties and perused the material on record.
Shri Ajeet Kumar Sharma, learned Senior Advocate, appearing on behalf of petitioners, has submitted that the impugned order is offshoot of the judgment dated 23.08.2011 passed by coordinate bench of this Court in Writ Petition No. 11153/2011 - Suo Motu vs. State of Rajasthan, which writ pertains to catchment area of Ramgarh Dam. Some part of catchment area was found to have been encroached by petitioner by raising certain walls etc, that were removed. However, the disputed land does not form part of the catchment area. It is independent of that area. Allegation that entire land is pasture land is not correct. It is contended that the revenue authorities are not sure about exact measurement and location of land of khasra No. 526 of said village. Learned counsel has taken the Court through judgment of the Tribunal to show that initially survey that was undertaken by the team of revenue department on 17th August, 2012, did not give exact measurement of encroachment but only indicated with reference to construction of certain blocks of building. That report was not signed by revenue officials and was prepared behind the back of petitioners. It being an ex-parte report, petitioners filed objections thereto. It was thereafter that learned Tribunal directed a fresh measurement to be undertaken. New report dated 11.09.2012 has indicated encroachment over the land area of 5920 square meter of khasra No. 526, which, according to respondent JDA, was in its khatedari. Learned senior counsel submitted that measurement has not been correctly taken. In this connection learned counsel referred to measurement/survey report. He read the survey report in whole to say that a defective method was adopted by the revenue team in taking measurement. While measurement was taken from two sides i.e. north and south, no such measurement was taken from eastern and western side and thus, there is every possibility of wrong measurement being taken and that exact location, of Khasra No. 526 may not have been correctly identified. It is also submitted that due to faulty method of taking measurement, so many villagers have also been adversely affected. In this connection, learned counsel referred to report at Page 121 of the paper book to show that names of as many as 20 villagers were mentioned therein with assertion that even they have made encroachment over the lands of Khasra No. 526 belonging to respondent JDA. Those names also include the Gram Panchayat, which constructed five shops measuring 20 meter x 3 meter i.e. 60 meters.
Shri Ajeet Kumar Sharma, learned senior counsel submitted that the petitioners purchased adjoining agriculture lands for sale consideration from their owners and it was bona-fide transaction of purchase. Constructions have not been made now but were made way back in 2000-2001. Buildings that are constructed over the disputed land, are hostels wherein nearly 2000 students are residing. Their examinations are approaching soon, therefore this Court may interfere in the matter till the government decides the application of the petitioners for allotment of disputed land to the petitioners. In this connection, learned counsel also argued that in Writ Petition No. 1814/2012 - NIMS University Rajasthan, Jaipur & Anr. vs. State of Rajasthan & Ors., prayer was made for issue of writ of mandamus to consider application of petitioners for consideration of their case for allotment of disputed land. Petitioner is a charitable institution engaged in the work of imparting education and that the government has a provision for making allotment of lands to such institutions. There is no justification in not making allotment of the disputed land, especially when land has actually been put to charitable use and that the petitioners have their hostel buildings located in the disputed land for last more than a decade. It is contended that the petitioner is a charitable organization and is also a statutory university having been established by an enactment passed by the Rajasthan Legislative Assembly viz., the NIMS University Act, 2008. Petitioner as per the Rules, is entitled for allotment of 35 acres of land in Khasra Nos. 667/732, 531/667, 531, 532, 533, 528, 527, 533/674, 550, 546 and 547, in also include Khasra No. 546. Learned senior counsel in this connection referred to the Rajasthan Land Revenue (Allotment of Unoccupied Government Agricultural Lands for the Construction of Schools, Colleges, Dispensaries, Dharamshalas & Other Buildings of Public Utility) Rules, 1963, in specific. Rule 2 thereof, and submitted that as per the aforesaid Rules, charitable medical institutions are entitled to allotment of 35 acres of land. It is also contended that the petitioners even offered before the Tribunal their unencumbered land in lieu of the disputed land used by the petitioners by raising construction of hostels etc.
Shri Ajeet Kumar Sharma, learned senior counsel submits that the money invested in raising such huge construction would go waste if the respondents decide to demolish the buildings. Till such time the government decides the application of petitioners, respondent JDA be required to hold its hand and it may not be permitted to demolish the buildings. Learned senior counsel also submitted that the respondent JDA is acting in highhanded and arbitrary fashion inasmuch as it is acting in discriminatory manner. While it has proceeded against petitioners to demolish the buildings but it has not taken any step to remove the encroachment made by M/s. N.K. Developers, Rawat Farms, Nature Farms etc., who are all influential people. Removal of encroachment would mean demolition of buildings. It is likely to affect the future of thousands of students and therefore the matter requires urgent interference by this Court. It is contended that the petitioners made application for allotment of disputed land in favour of petitioners way back on 10.05.2002 followed by number of representations/reminders dated 28.02.2005, 02.03.2005, 22.04.2006, 07.03.2007, 18.04.2008, 25.03.2009, 18.02.2010 and 16.03.2011 (Annexures 3 to 10 to the Writ Petition No. 1814/2012) but the government has not taken any action whatsoever on their representation and, therefore, till the application of the petitioners for allotment of disputed land is decided, the respondents be required to maintain status-quo in respect thereto. It is contended that the land has been recorded in the khatedari of respondent JDA only in the year 2010 i.e. much after the initial representation made by the petitioners to the government for its allotment in their favour.
Shri Virendra Lodha, learned Senior Advocate appearing on behalf of the respondent JDA in Writ Petition No. 16836/2012, opposed the writ petition and submitted that petitioners had no justification whatsoever to encroach upon the pasture land which comprises in Khasra No. 526. Said khasra is entered in the khatedari of respondent JDA. It is not clear as to in which year the construction was raised on the disputed land but even if the construction was raised twelve years ago, this by itself does not justify encroachment of petitioners. Learned counsel submitted that measurement was taken not only once but twice and subsequent measurement was taken by team of experts of revenue department under the supervision of Sub Divisional Officer, Amber. It was a review committee consisting of Sub Divisional Officer and other members of the revenue department and Jaipur Development Authority. The measurements were taken by the correct method prevalent in the revenue department. Measurements were taken from all four sides including east and west. Measurements reveal total area of encroachment to be 8125 square meters. It is contended that measurement was taken as per new map. Actually there was some discrepancies in the old map, therefore, a fresh physical verification was directed and in the fresh inspection, the correct measurement of the encroachment was found to be 8125 square meters of land. Learned counsel submitted that the land in dispute comprising of Khasra No. 526, over which encroachment has been made by petitioners, has been recorded in the khatedari of respondent JDA. And, therefore, just because the petitioners have raised certain constructions over disputed land, it does not justify continuation of their trespass and the purpose for which the land has been used would not make any difference.
Shri Virendra Lodha, learned Senior Advocate appearing for respondent JDA in Writ Petition No. 16836/2012, has argued that respondent JDA has always acted uniformly and in evenhanded manner. Respondent JDA has taken steps to remove encroachment made by any person, whoever he may be and howsoever high position he may have been enjoying in the society. The respondent JDA will definitely take steps to remove encroachment if any found in the case of names told by the petitioners.
Shri Mahendra Goyal, learned counsel for respondent JDA in Writ Petition No. 1814/2012, has argued that the government on its own cannot allot the disputed land to the petitioners as it is a government land. Entire Khasra No. 526 is recorded in the name of respondent JDA and it is the respondent JDA alone which is competent to take any decision in respect thereto. The respondent JDA has contested the matter before the JDA Appellate Tribunal. It was disputed that the petitioner University is a charitable institution. Learned counsel submitted that there is no evidence of any charity by petitioner institution inasmuch as the conduct of the petitioners in making encroachment over public land and then to justify their encroachment over disputed lands offering another land in lieu thereof, does not go well with the pious object of charity and education which the petitioners claim to pursue.
I have given my anxious and thoughtful consideration to rival submissions of learned counsel for the parties and perused the material on record.
Contention of learned senior counsel for petitioners that exercise of measurement that has been undertaken by the team of revenue department should be rejected as being faulty, cannot be accepted because it was a team of experts consisting of representatives of revenue department and respondent JDA under the supervision of Sub Divisional Officer, Amber. The measurement was earlier taken on 17.08.2012 and thereafter again on 11.09.2012 when the petitioners objected to the first measurement. A perusal of measurement report clearly indicates that the measurements were taken not from just two sides i.e. north and south but also from east and west. It is the job of the experts team consisting of officials of revenue department and respondent JDA carried out by them under the supervision of Sub Divisional Officer, Amber. Revenue department officers are the best suited to undertake such job. The revenue officials on completion of measurement of Khasra No. 526 found not only the petitioners having encroached upon the land measuring 8125 square meters but also found encroachment of certain other villagers. This Court in such a factual scenario cannot entertain arguments to reject the report of the experts to say that measurement was not correctly carried out or express any other opinion on the basis of report Mere making application by the petitioners for allotment of the said disputed land in the year 2002 and then remaining contented for such a long period, would not be a justified reason to allow the illegal and unauthorized construction of the petitioners to stand over disputed land of Khasra No. 526. This is a public land, which is in fact the pasture land and is now entered in the khatedari of respondent JDA. Learned Tribunal has thereabout examined this matter. Learned Tribunal has in fact in order to safe guard the interest of petitioners directed second survey/measurement to be conducted in presence of their representatives. Petitioners have not been able to effectively dislodge that report in so far as encroachment is concerned. On the contrary, the petitioners before the Tribunal offered to give another unencumbered land in lieu of the disputed land over which it has encroached upon. The Tribunal has rightly discarded such an offer. Such a stand hardly justify encroachment by raising construction on large scale and then offering to give another land in lieu thereof. The Tribunal on analysis of entire matter has found the petitioners to have encroached upon pasture land of 8125 square meters of Khasra No. 526 and therefore has upheld the notice issued by the respondent JDA u/s 72 of the JDA Act and rightly so. Respondent JDA was well within its jurisdiction to issue such notice calling upon petitioners to remove encroachment over disputed land. In view of the conduct of petitioners, arguments of equity that it might affect the students, may not be available to the petitioners. Once it is found that petitioners have encroached upon a public land, the law should be allowed to take its own course and things should be taken to their logical conclusion. Mere fact that petitioners had applied to the government for allotment of the disputed land in its favour and continued to send reminders, one after another, for such allotment, also does not justify their continuation over encroached land.
Contention of petitioners that till respondents do not take any action against other persons, who have allegedly encroached upon the surrounding land of the respondent JDA, therefore petitioners may also to their encroachment, cannot be accepted because two wrongs cannot make one right. Concept of equality can be enforced in positivity and not in negative. Such an argument can be founded on a positive right, only if it is shown that the asserted right has a legal backing. Petitioners can, by no stretch of imagination, justify their encroachment and continuation of encroachment over the pasture land. Such contention is therefore rejected.
In view of above discussion, I do not find any infirmity in impugned judgment dated 12.10.2012 passed by the learned JDA Appellate Tribunal, Jaipur, in Appeal No. 37/12. There is no merit in both the writ petitions, which are both accordingly dismissed. Learned Senior Advocate appearing on behalf of petitioners, at this stage, submitted that a reasonable time should be granted to petitioners to avail remedy of appeal before Division Bench of this Court and during that time period respondent JDA may be required not to demolish the buildings etc. over the disputed land. The prayer is accepted in the terms that the respondent JDA shall not undertake that exercise till 07.11.2012.
This also disposes of stay application.