1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.1073/ 03 (Prahlad Singh Mahla V/ s. State of Raj. & Ors.) Date of Judgm ent : : 22.04.2009 HON'BLE MR.JUSTI CE R.S. CHAUHAN Repor t able Mr. Anoop Dhand for the petitioner. Mr. D.V. Tholia for respondent No.4. Having sacrificed eighty percent of his body for the security of our country in the Kargil War, the petitioner is still running from pillar to post praying that five hundred square yards of land be given to him for settling his fam ily. It is, indeed, a shocking state of affairs that the State, which should have protected and promoted the petitioner's interests, has embroiled him in endless objections and procedures. Due to the callous attitude of the State, the petitioner has knocked at the doors of this Court hoping for som e semblance of justice being done to his cause. 2 The brief facts of the case are that the petitioner was serving as a Naik Soldier in Indian Army. He was given the Army Num ber 2682273W NK and he was posted with 16 Grenadiers during the “Operation Vijay” at Kargil. While he was fighting the Kargil War, he was gravely injured; he has not only sustained three bullet injuries, but also suffered the fracture of left radius bone and of the right clavicle. He further sustained injuries on his abdomen. Consequently, the petitioner suffered a permanent disability of eighty percent. On 07.04.2001, the petitioner submitted an application to the Sarpanch of Village Derwala, Panchayat Sam iti Jhunjhunu, District Jhunjhunu. In the said application, he prayed that a land measuring one thousand square yards be allotted to him in Khasra No.225 of Village Derwala. The Gram Panchayat met on 05.07.2001 and opined that one bigha of land could be converted for residential purpose so that injured ex-service personnels can be 3 re-settled. Therefore, a request be made to the District Collector, Jhunjhunu for converting the land in Khasra No.225 from agricultural to residential usage. On 31.07.2001, the Director, Soldier Welfare Department also wrote a letter to the District Collector, Jhunjhunu, recommending the grant of land to the petitioner. Since the Collector had not sanctioned the land, in its meeting dated 05.08.2001, the Gram Panchayat again resolved that it is the duty of the Gram Panchayat to rehabilitate and re-establish soldiers who have sacrificed their lives and limb for the nation. Therefore, the Gram Panchayat again sent a proposal with regard to converting the land of Khasra No.225 from “gochar” (pasture land) land, to residential land. Consequently, vide order dated 29.05.2002, the District Collector converted the land from agricultural purpose to residential purposes. According to the said order, the land was to be allotted to “the needy persons including people who are poor and people who belong to SC/ ST 4 communities”. It was clearly stated that those persons who are poor or people who belongs to SC/ ST communities, they shall be given a preferential treatment. In pursuance of the order dated 29.05.2002, the Block Development Officer sent a letter to the Sarpanch directing him to allot part of Khasra No.225 to the petitioner. It is the case of the petitioner that despite the conversion of the land by the Collector, in spite the clear-cut direction issued by the Block Development Officer for allotting the land to the petitioner, the Sarpanch is sitting tightly over the entire issue and has not allotted the land to him. Therefore, the petitioner again approached the Director, Solider Welfare Board. The Director, Soldier Welfare Board, vide letter dated 08.08.2002, requested the Sarpanch to allot the land in Khasra No.225 to the petitioner. However, even this letter fell on deaf ears. On 09.12.2002, the petitioner subm itted a representation to the District Collector. Since no action was being taken by the District Collector, the petitioner was constrained to 5 file a representation before the District Collector on 06.01.2003. Notwithstanding the pleas of the petitioner, notwithstanding the earlier directions issued by the Block Development Officer, vide resolution dated 28.01.2003, the Gram Panchayat has decided to allot land to the poor while keeping in mind the earlier resolution dated 05.06.2001 in favour of the petitioner. However, as still no land is being allotted in favour of the petitioner, despite the resolution dated 28.01.2003, the petitioner has approached this Court. Mr. Anoop Dhand, the learned counsel for the petitioner, has contended that under Rule 159 of Rajasthan Panchayati Raj Rules, 1959 (in short, 'the Rules), the Gram Panchayat is empowered to allot land on a concessional rate to the Ex-service Military Personnel of Non-comm issioned ranks. According to the said Rule, the Panchayat may allot the land measuring five hundred sqaure yards from Abadi land, to those Ex-service Military Personnel (Non- commissioned ranks) who do not own any Abadi 6 land on priority basis at fifty per cent of the market price. According to the learned counsel, Rule 159 of the Rules is a social beneficial piece of legislation enacted in order to give benefit to the Ex-service Military Personnel. Secondly, the petitioner had subm itted his application to the Sarpanch under the said Rules. On the basis of his application, the Gram Panchayat had decided to allot one thousand square yards of land in Khasra No.225 provided the permission was received by the Collector. The said sanction was received by the Collector vide order 29.05.2002. According to said order, those who are needy, a category which would also include ex-servicemen, such persons would be entitled for allotment of land in Khasra No.225. Hence, the petitioner would be eligible under order dated 29.05.2002, as “the needy” for the allotment of land. Thirdly, the petitioner does not own any 7 Abadi land, but has certain share in agricultural land belonging to his family. Therefore, the bar contained in Rule 159 of the Rules cannot be read against the petitioner. Thus, under Rule 159 of the Rules read with order of the Collector dated 29.05.2002, the petitioner is entitled for allotment of land in Khasra No.225. Forthly, once the Block Development Officer had directed the Sarpanch to allot the said land to the petitioner, the Sarpanch could not have sat tightly over the entire issue. Fifthly, resolution dated 28.01.2003 also states that the land should be allotted to the needy including those who are below the poverty line and those who belong to the SC/ ST community, while keeping in mind the resolutions dated 05.06.2001. Therefore, even now, the intention of the Gram Panchayat continues to be that land in Khasra No.225 should be allotted to the petitioner. 8 However, despite this resolution, in spite of the clear-cut directions of the Block Development Officer, the Sarpanch is refusing to allot the land to the petitioner in Khasra No.225. Therefore, the action on the part of the Sarpanch is absolutely arbitrary, unjust and unfair. On the other hand, Mr. D.V. Tholia, the learned counsel for respondent No.4, the Sarpanch, has vehemently contended that in fact, the petitioner had applied for grant of land under the Scheme framed by the Government for those soldiers who were injured in “Operation Vijay”, in the Kargil war. According to the said Scheme, a solider who is permanently handicapped is entitled to Rs.25,000/ - and twenty-five bighas of land in Indira Gandhi Canal Area or to Rs.25,000/ - and Rs.4,00,000/ - in lieu of the land. Therefore, according to the learned counsel, the petitioner is entitled to allotment of land only in the Indira Gandhi Canal Area and not within his own village. 9 Secondly, according to the revenue records, the petitioner has sufficient agricultural land to sustain him and his family. Thus, he is not entitled to allotment of land under Rule 159 of the Rules. Thirdly, the petitioner has also been granted a petrol pump. Therefore, he does not fall within the word “needy”. Hence, he is not entitled for grant of land under Rule 159 of the Rules. Forthly, according to the order dated 29.05.2002, the land was to be allotted to those who are below the poverty line and those who belong to SC/ ST comm unity. Since the petitioner is neither below the poverty line, nor belongs to SC/ ST community, he is not eligible for allotment of land. Fifthly, according to the letter of the Block Developm ent Officer dated 27.06.2002, the Sarpanch was directed to allot the land “in 10 accordance with law”. Since, the petitioner is not eligible under Rule 159, therefore, no land can be allotted by the Sarpanch to the petitioner. Hence, he has supported the action of the Sarpanch in not allotting the land to the petitioner. Heard learned counsel for the parties and perused the record. A bare perusal of the record does not reveal that petitioner sought the land under the Scheme floated by the State Government for re- settling ex-servicemen from “Operation Vijay” in the Kargil War. The petitioner had, in fact, applied to the Sarpanch for grant of land at concessional rate. Although the said application does not claim to be under Rule 159 of the Rules, but as the application seeks grant of land at concessional rate, it is deemed to be an application under Rule 159 of the Rules. Therefore, the contention of the learned counsel for the respondent No.4 that the petitioner 11 had applied for grant of land under the scheme floated for re-settling ex-servicemen of Kargil War is baseless. Rule 159 of the Rules is as under : - Rule 159. Allotment of lands on concessional price. -(1) The Panchayat may allot plots upto 500 sq. yards from Abadi land available with to Ex-service Military Personnel (Non-commissioned ranks) who do not own any Abadi land on priority basis, at 50% of the market price as mentioned in Sub-rule (5) of Rule 152. (2) The Panchayat may also allot plots 1500 sq. yards for godowns/ offices etc.,of Gram Seva Sahkari Samiti / Primary Agricultural Cooperative/ Large sized multipurpose Marketing Society on priority basis, at 50% of the market price as mentioned in Sub-rule (5) of Rule 152.” A bare perusal of Rule 159 of the Rules clearly reveals that it is a social beneficial piece of legislation made for the benefit of Ex-Service Military Personnels who need to be rehabilitated. Considering the fact that large number of personnel in the defence forces com e from the villages of Rajathan, 12 considering the fact that once these defence personnels are discharged/ retired from the service or are physically handicapped during a war or insurgency, they need to be rehabilitated, Rule 159 of the Rules was made for the benefit of Ex-service Military Personnel. Since, it is a case of social beneficial piece of legislation, it should be given as liberal an interpretation as possible. A bare perusal of the Rule clearly reveals that while allotting land at a concessional rate to the Ex-service Personnels belonging to Non-comm issioned ranks, the only rider is that they should “not own any Abadi land”. A distinction exists between “an agricultural land” and “an Abadi land”. Since the aim of the Rule is to ensure that the Ex-service Military Personnel would be in a position to build a house, therefore, the only restriction is that he should not have any land in the Abadi area. However, the said restriction cannot be extended to include the owning of an agricultural land. Thus, even if a person were to own agricultural land, but does not own Abadi land, he would still be 13 entitled to grant of Abadi land at a concessional rate. In the present case, although the revenue record has been produced before this Court showing the fact that the petitioner owns certain agricultural land, there is not an iota of evidence to prove that the petitioner owns any Abadi land. Therefore, he does not fall within the prohibited category contained in Rule 159 of the Rules. Being an Ex- service Military Personnel, the petitioner is certainly entitled to allotment of land under Rule 159 of the Rules. According to the learned counsel for respondent No.4, the Collector directed that the land of Khasra No.225 should be allotted to those who are below the poverty line and those who belongs to SC/ ST comm unity. However, a bare perusal of order dated 20.05.2009 bellies the contention raised by the learned counsel. The said order clearly states that “the land should be allotted to those who are 14 needy, including those who are below the poverty line and those who belong to SC/ ST community who shall be given a preference”. Therefore, the allotm ent of land is not restricted only to those who are below the poverty line or to those who belong to SC/ ST categories. The order merely directs that preference would be given “to those who are below the poverty line and those who belongs to SC/ ST community,” while allotting the land to the needy persons. The word “needy” cannot be placed in a straight-jacket formula. After all, the word “needy” is a relative term. Therefore, the interpretation placed by the learned counsel for respondent No.4 with regard to those who are eligible to have the land allotted is misplaced. In the present case, the question arises whether the petitioner is needy or not ? According to the learned counsel for respondent No.4, as per report prepared by Inquiry Committee consisting of three persons, the petitioner has share in 15 agricultural land which belongs to his family. Moreover, he has been allotted a land for establishing a petrol-pump near Bharatpur by the Central Governm ent. Thus, the petitioner is not needy. However, the learned counsel for the petitioner has pleaded that the said inquiry report was prepared behind the back of the petitioner. Moreover, there is no evidence on record to show that the petitioner has been allotted any land for establishing a petrol pump. A bare perusal of the inquiry report clearly reveals that prior to holding the inquiry, no notice was issued to the petitioner. Hence, the said inquiry was conducted behind the petitioner's back. Moreover, there is no evidence on record to show that the petitioner has been allotted any land by the Central Government near Bharatpur for setting up a petrol pump. In these circum stances, it is difficult to believe that the petitioner has been granted any land for establishing a petrol pump. Moreover, merely 16 because he has some shares in agricultural land which is co-jointly owned by his family would not take him out of the category of being needy. In the present case, there is no evidence to show that the petitioner owns any Abadi land. Thus, for the purpose of Rule 159, the petitioner continues to be “needy”. Moreover, as the petitioner has suffered eighty per cent of physical disability, as he wants to construct a house, as he has merely agricultural land in the village, for the purpose of Rule 159, he continues to be “needy”. Furthermore, once a direction had been issued by the Block Development Officer vide order dated 28.01.2003, the Sarpanch was duty bound to implement the said order. Since the order has been issued by a superior authority, the Sarpanch was not justified in quietly sitting over the entire matter and in flouting the said order through his omissions. In this view, the action on the part of respondent No.4 in not allotting the land to the petitioner is clearly in 17 violation of Rule 159 of the Rules and in violation of order dated 28.01.2003 passed by the Block Developm ent Officer. Further, a bare perusal of resolution dated 28.01.2003 passed by the Gram Panchayat clearly reveals that Gram Panchayat is willing to allot the land from Khasra No.225 keeping in mind its earlier resolutions. Thus, the Gram Panchayat continues to be of the opinion that the petitioner should be allotted land in Khasra No.225, despite the lapse of time. In this view of the matter, this Court directs the Sarpanch to allot a land measuring five hundred square yards at a concessional rate of fifty percent of market price, in Khasra No.225 situated at village Derwala, Pachayat Samiti Jhunjhunu, District Jhunjhunu to the petitioner, within a period of two months from the date of receipt of certified copy of this order. In case, the Sarpanch does not allot the land to the petitioner within the stipulated 18 period, the petitioner shall be at liberty to file a contempt petition against him. With these observations, this writ petition is, hereby, allowed. There shall be no order as to costs. [ R.S.CHAUHAN] J A.Asopa/