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Judgment
D.B.Civil Writ Petition No.13467/2016 was disposed of on 20.12.2016 without notice to the respondents. The respondents in the writ petition were
the State of Rajasthan, the District Collector, Jodhpur, Gram Panchayat through Sarpanch of Village Kundal, tehsil Phalodi District Jodhpur, the
Tehsildar in-charge of the village, the Executive Engineer of Public Works Department, tehsil Phaolid District Jodhpur and the Assistant Engineer of
Jodhpur Vidhyut Vitran Nigam Limited.
Espousing a public cause the writ petitioners pleaded that 1564.12 bigha land comprised in Khasra No.523 and 313.13 bigha land comprised in
Khasra No.476 in village Kundal was recorded as ‘Gair Mumkin Aghore’ i.e. a catchment area in the revenue records. The grievance was that
inspite of the Additional District Magistrate taking cognizance of the fact that no encroachment could be made on said land and much less
constructions made, no action was taken.
The applicants of the D.B.Misc. Application No.32/2018 are the villagers who are affected by the order for the reason taking cognizance of the
Division Bench order, the authorities have initiated proceeding to remove them from the area. They point out in the application a fact which is not in
dispute that due to acquisition of agricultural land in the village for purpose of augmentation of facilities for Air Force hardly any land remains near the
Abadi land. For over 48 years the limits of the Abadi land was not extended. Population of the village grew. With the increase in the population even
the Government had to augment facilities and did so by constructing a school, a water tank and a public hall on part of land comprised in the two
khasras.
It is pleaded that in the year 1986 five bighas land was permitted to be used for Abadi land and in the year 2002 another ten bighas. Admitting that
the applicants do not have a title document, the applicants pleaded that they are all poor people. They rely upon BPL cards issued to their families.
They also rely upon electricity bills showing that the area was electrifying for more than 30 years ago.
We have asked learned counsel for the writ petitioners that what were the writ petitioners doing for the last 48 years? What did they do when the
first encroachment took place? Why the writ petitioners allowed the Government to construct a Government School, a public hall and a water tank in
the area? There is no answer.
Obviously, the writ petitioners are also beneficiary of the constructions made by the Government on the land in question.
Whilst it may be true that catchment areas and especially in the State of Rajasthan should not be utilized for purpose of construction because the
same would impede flow of rain water into the water bodies and ponds in the village, but we find two conflicting interests having same value and same
virtue to be clashing. On the one hand is the requirement of the villagers for rain water to be harvested and catchment area made free from
encroachments and at the same time the right to shelter by the poor people.
It is a settled law that delay and latches has also to be considered by the Court.
In the instant case this Court cannot lose sight of the fact that those who are impacted by the order dated 20.12.2016 belong to the marginalized
sections of the society.
For the facts noted hereinabove the only way forward is to balance the equities. The balance will be to relieve the State authorities from the
mandamus issued vide order dated 20.12.2016. But a direction in the public interest needs to be modified.
Within six months from today the State Authorities shall identify Abadi land where the occupants of the lands in the two Khasras who built houses
40 years ago would be shifted by allotting a plot of land in the Abadi site to them. Such financial assistance which would be required by the BPL
families would be extended to them so that they can shift their residence. Till the occupants who have construct their houses in the two khasras are
rehabilitated, the order dated 20.12.2016 shall not be enforced.
Upon allotting a suitable plot in an Abadi site, giving three months time for constructing their house, the State would ensure that the encroachments
on the two khasras is removed.
The application and the contempt petition are disposed of.