1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR S.B.Civil Writ Petition No.7406/2004 Satyanarain Vs. The State of Rajasthan & Ors. Date of Order :- 29.06.2009 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr.S.N. Meena, for the petitioner. Mr.M.S. Kachhawa, Dy.G.A. for the State. The petitioner has challenged the order dated 25.09.1998 passed by the Assistant Conservator of Forest whereby he had directed that the petitioner be evicted from Khasra No.1987 Rakba 4X5 metre. The brief facts of the case are that the petitioner is holding possession of a shop (Thadi) at village Chouth-ka-Barwara near temple of Chouth Mata for last thirty-three years in land bearing khasra No.1987/2. The land is “Siwaichak binalagani”. The shop is on the way to the temple. Although the shop is in a narrow path, it does not cause any hindrance to the people. But the Forest Guard (Vanpal) Chouth-ka-Barwara registered a case against the petitioner U/s 91 of the Raj. Land Revenue Act, 1956. According to the Forest Guard, 2 the petitioner had encroached over 4X5 metre of forest land in khasra No.1987. The Forest Guard submitted the matter to the respondent No.3, the Assistant Conservator of Forest, Sawaimadhopur. But, without service of summon on the petitioner and without providing the opportunity of hearing, respondent No.3 passed the order dated 25.09.1998 whereby he declared the petitioner as an encroacher and directed that he be ejected from the said land. He also imposed a fine of Rs.15/-. He directed the Div. Forest Officer to eject the petitioner from the land in dispute within seven days. But, the petitioner is still in the possession of the shop and land in dispute. Hence, this writ petition before this Court. Mr. S.N. Meena, the learned counsel for the petitioner, submits that the impugned order has been passed by the respondents without due application of mind. For, according to the inspection report allegedly the petitioner had encroached on Kharsa No.1987. But the fact remains that the shop constructed by the petitioner happens to be in Khasra No.1987/2 and not in 3 Khasra No.1987. Therefore, without appreciating this fact, the petitioner is being evicted illegally from his shop. Secondly, no opportunity of hearing was given to the petitioner and the impugned order was passed behind his back. On the other hand, Mr. M.S. Kachhawa, the learned Dy.G.A. for the State, has contended that in fact, the petitioner's statement was recorded on 11.03.1998. In the statement, the petitioner admitted that his shop has been constructed in Khasra No.1987/2 and the said Khasra belongs to the Forest Department. Hence, the respondents were justified in passing the impugned order. He has submitted a copy of the statement dated 11.03.1998 before this Court. Heard the learned counsel for the parties and perused the impugned order as well as the petitioner's statement dated 11.03.1998. The statement given by the petitioner dated 11.03.1998 is as under :- मɇ शपथ पूव[क बयान करता हू ͩक उƠ भूͧम चौथ का बरवाडा खसरा न. 1987/2 मɅ माताजी के मंिÛदर के नीचे वन ͪवभाग 4 नस[रȣ से मिÛदर जाने वाले राèते कȧ बांयी तरफ 4X5 मी. जमीन पर प͠ी/फसȸ से Ǔनमा[ण कर दुकान बना रखी है । यह दुकान वन ¢ेğ मɅ हɇ । इसमɅ मेरा कोई आवंटन नहȣ हɇ । मेरȣ दुकान Įी Ĥभूलाल S/o गगांराम मालȣ कȧ दुकान के पास है । मेरȣ यह दुकान उƠ जगह पर करȣब 8-10 वष[ से लगा रखी है और चौथ माता कमेटȣ के Ʈारा हर वष[ टैÈस ͧलया जाता है िजसकȧ रͧसद अभी मेरे पास नहȣं है । आगामी तारȣख पेशी पर Ûयायालय मे पेश कर दुंगा । ये हȣ मेरे बयान है । According to the impugned order, the inspection report revealed that the petitioner had encroached upon 4X5 metre of Khasra No.1987. The entire discussion in the impugned order is with regard to Khasra No.1987. However, in the statement given by the petitioner clearly stated that his shop is situated in Khasra No.1987/2. Thus, the respondents have failed to appreciate the fact that while the inspection report is with regard to Khasra No.1987, the petitioner's shop is alleged to exist in Khasra No.1987/2. Apparently, two different Khasra numbers are under discussion and yet the respondents have directed that the petitioner be evicted from Khasra No.1987. This clearly shows non-application of mind. Hence, this Court has no hesitation in quashing and setting aside the order dated 25.09.1998. 5 However, considering the fact that in the statement dated 11.03.1998, the petitioner has admitted that Khasra No.1987/2 does belong to the Forest Department, the Forest Department shall be free to take action against the petitioner after verifying the fact whether Khasra No.1987/2 falls within the forest area or not and after giving him complete opportunity of hearing. It shall issue a notice to the petitioner, if and only if, Khasra No.1987/2 falls under the forest area. Till this entire exercise is carried out, the petitioner shall not be disturbed from carrying out his business in the shop existing in Khasra No.1987/2. With these observations, this writ petition is allowed. However, liberty, as stated above, is granted to the respondents to take any necessary action against the petitioner in accordance with law. (R.S.CHAUHAN)J. Manoj Solanki