Case: National Institute of Medical Science University Rajasthan &amp; Another Vs. State of Rajasthan &amp; Others

in the Authority is required at any time by the Nagar Nigam, Jaipur for carrying out its functions, or by the State Government for any other purpose, the State Government may, by notification in the Official Gazette, place such land at the disposal of the Nagar Nigam, Jaipur or any Department of the State Government on such terms and conditions, as may be deemed fit. (4) All land acquired by the Authority, or by the State Government and transferred to the Authority, shall be disposed of by the Authority in the same manner as may be prescribed for land in sub-section (1).)The High Court noted that no application was made by NIMS to the Jaipur Development Authority for allotment of Khasra No. 526 or any other Khasra of village Jugalpura. 26. Under these circumstances, the Division Bench took the view that NIMS had encroached upon Khasra No. 526 and had raised constructions thereon without any permission or sanction and that it was not possible to ignore the illegalities committed by NIMS. 27. NIMS contended before the Division Bench that since massive constructions had already been made, no useful purpose would be served by demolishing the construction. It was submitted that demolition would not serve any public purpose. This submission was rejected by the Division Bench by relying upon a decision of this Court in Jagpal Singh v. State of Punjab (2011) 11 SCC 396 ) to the effect that if land is not available for allotment and construction is made thereon, then that construction must be demolished. 28. The High Court also took the view that if appropriate steps are not taken to remove the encroachment, it would encourage others to encroach upon land and to seek regularization of any illegal construction made thereon. 29. As far as the decision rendered by the Appellate Tribunal is concerned, the Division Bench noted that the report of 11th September 2012 was unimpeachable and there was no doubt that NIMS had encroached on 8125 sq. mtrs. of land in Khasra No. 526. Proceeding in this Court 30. It was submitted by learned counsel for NIMS that no encroachment was made by NIMS and that in any event there were a large number of encroachers in the catchment areas. According to learned counsel there was no reason why only NIMS should be singled out for adverse or punitive treatment. We are not at all impressed by the submissions made by learned counsel. 31. What is before us is really only a factual dispute. NIMS has not been able to show any perversity, on facts, in the orders passed by the Appellate Tribunal or by the learned Single Judge or by the Division Bench. 32. One of the factual conclusions arrived at by the High Court is that NIMS had made a request for allotment of Khasra No. 526 for the first time only on 28th February 2005 and that too before the Chief Minister who was not the competent authority to make the allotment – the competent authority being the Collector of Jaipur district. Why NIMS chose to directly approach the Chief Minister is a mystery which can be solved only by NIMS. 33. Post 1st October 2007 there was no request made by NIMS to the Jaipur Development Authority for the allotment of Khasra No. 526. 34. Assuming there was no response from the Chief Minister to that or any other representation made by NIMS to any authority including the Jaipur Development Authority for allotment of Khasra No. 526, NIMS had no right to assume that its request for allotment had been accepted (or not rejected) by the Chief Minister or the Jaipur Development Authority and on that assumption to make constructions on the land without any permission or sanction. 35. It has also come on record as a matter of fact that NIMS had encroached upon 8125 sq. mtrs. in Khasra No. 526. It has also come on record that in fact NIMS had not filed any objections to the Report dated 11th September 2012 before the Appellate Tribunal. It has also come on record that as a matter of fact due to the illegal and unlawful construction having been made in the area by several parties including NIMS, Ramgarh Lake is now absolutely dry and the residents of Jaipur city are suffering from water shortage because of this - since water from the region was being supplied to Jaipur city before the area dried up. These undisputed facts are enough to dismiss the petitions filed by NIMS. There is no law that supports the brazenness of NIMS in wantonly encroaching on Khasra No. 526 and then making huge constructions thereon. 36. Learned counsel for NIMS did not place before us any law or decision to support the encroachment by NIMS on Khasra No. 526. But, learned counsel for the Jaipur Development Authority as well as learned counsel for Dinesh Kumar Saini a reporter of Current Jwala (Respondent No. 2) drew our attention to Section 16 of the Rajasthan Tenancy Act, 1955 which prohibits accrual of Khatedari rights in pasture land. (16. Lands in which Khatedari rights shall not accrue – Notwithstanding anything in this Act or in any other law or enactment for the time being in force in any part of the State Khatedari rights shall not accrue in – (i) pasture land; (ii) to (xiv) xxxx Provided that …..)It was submitted that in view of this provision, assuming the land in Khasra No. 526 to be pasture land, NIMS could not have acquired Khatedari rights as claimed. Conclusion 37. It is most unfortunate that despite orders passed by the Rajasthan High Court in Abdul Rahman and in the suo motu petition and views expressed by the Monitoring Committee appointed by the High Court as well as the Expert Committee set up by the State Government and plan of action having been prepared by the State Government, nothing substantive appears to have been achieved on the ground over the years.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]30. It was submitted by learned counsel for NIMS that no encroachment was made by NIMS and that in any event there were a large number of encroachers in the catchment areas. According to learned counsel there was no reason why only NIMS should be singled out for adverse or punitive treatment. We are not at all impressed by the submissions made by learned counsel.31. What is before us is really only a factual dispute. NIMS has not been able to show any perversity, on facts, in the orders passed by the Appellate Tribunal or by the learned Single Judge or by the Division Bench32. One of the factual conclusions arrived at by the High Court is that NIMS had made a request for allotment of Khasra No. 526 for the first time only on 28th February 2005 and that too before the Chief Minister who was not the competent authority to make the allotment – the competent authority being the Collector of Jaipur district. Why NIMS chose to directly approach the Chief Minister is a mystery which can be solved only by NIMS33. Post 1st October 2007 there was no request made by NIMS to the Jaipur Development Authority for the allotment of Khasra No. 52634. Assuming there was no response from the Chief Minister to that or any other representation made by NIMS to any authority including the Jaipur Development Authority for allotment of Khasra No. 526, NIMS had no right to assume that its request for allotment had been accepted (or not rejected) by the Chief Minister or the Jaipur Development Authority and on that assumption to make constructions on the land without any permission or sanction35. It has also come on record as a matter of fact that NIMS had encroached upon 8125 sq. mtrs. in Khasra No. 526. It has also come on record that in fact NIMS had not filed any objections to the Report dated 11th September 2012 before the Appellate Tribunal. It has also come on record that as a matter of fact due to the illegal and unlawful construction having been made in the area by several parties including NIMS, Ramgarh Lake is now absolutely dry and the residents of Jaipur city are suffering from water shortage because of this - since water from the region was being supplied to Jaipur city before the area dried up. These undisputed facts are enough to dismiss the petitions filed by NIMS. There is no law that supports the brazenness of NIMS in wantonly encroaching on Khasra No. 526 and then making huge constructions thereon36. Learned counsel for NIMS did not place before us any law or decision to support the encroachment by NIMS on Khasra No. 526.37. It is most unfortunate that despite orders passed by the Rajasthan High Court in Abdul Rahman and in the suo motu petition and views expressed by the Monitoring Committee appointed by the High Court as well as the Expert Committee set up by the State Government and plan of action having been prepared by the State Government, nothing substantive appears to have been achieved on the ground over the years.39. In our opinion, merely dismissing the petitions would serve no useful purpose since it appears to us that NIMS is a rather powerful and influential entity. We say this because it has been able to successfully frustrate its eviction and demolition of the construction for at least one decade. Even before us an attempt was made to take an adjournment so that it could possibly use its influence over whoever it may be to get some favourable executive orders40. In M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu and Ors (1999) 6 SCC 464  )this Court directed enforcement of the rule of law by demolition of unauthorized constructions. It was held as follows:The High Court has directed dismantling of the whole project and for restoration of the park to its original condition. This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorised. This dicta is now almost bordering the rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief. Such discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion the wherever it is required to be exercised has to be in accordance with law and set legal principles. As will be seen in moulding the relief in the present case and allowing one of the blocks meant for parking to stand we have been guided by the obligatory duties of the Mahapalika to construct and maintain parking lots.. This view was followed and endorsed in Jagpal Singh in the following words:In M.I. Builders (P) Ltd. v. Radhey Shyam Sahu the Supreme Court ordered restoration of a park after demolition of a shopping complex constructed at the cost of over Rs. 100 croresIn Friends Colony Development Committee v. State of Orissa (2004) 8 SCC 733  )this Court held that even where the law permits compounding of unsanctioned constructions, such compounding should only be by way of an exception. In our opinion this decision will apply with even greater force in cases of encroachment of village common land. Ordinarily, compounding in such cases should only be allowed where the land has been leased to landless labourers or members of Scheduled Castes/Scheduled Tribes, or the land is actually being used for a public purpose of the village e.g. running a school for the villagers, or a dispensary for themIn many States government orders have been issued by the State Government permitting allotment of Gram Sabha land to private persons and commercial enterprises on payment of some money. In our opinion all such Government orders are illegal, and should be ignored.