HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
D.B. Civil Writ No. 885/2018
Agarwal Dharamshala Chhani Badi, Tehsil- Bhadra, District- Hanumangarh. Through Its Chairman Bhagirathmal Goyal son of Shri Jugal Kishore Goyal, aged about 80 years, Resident Of Village- Chhani Badi, Tehsil- Bhadra, District- Hanumangarh.
----Petitioner
Versus
- State Of Rajasthan Through The Secretary, Revenue Department, Government Of Rajasthan, Jaipur.
- The District Collector, Hanumangarh.
- The Sub-Divisional Magistrate, Bhadra District Hanumangarh.
- Nayab Tehsildar, Chhani Badi, Tehsil Bhadra, District Hanumangarh.
----Respondents
For Petitioner(s) : Mr. Manoj Bhandari with Ms. Sonal
Lakwani
For Respondent(s) : Mr. A.R.Godara
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE MR. JUSTICE DINESH MEHTA
Judgment
15/11/2018
1. By way of this writ petition, the petitioner has questioned legality of notice dated 9.11.17, whereby the petitioner is directed to remove the encroachment made by him on the land ad measuring 3600 sq. ft. comprising khasra no.92, 93 of village Chhani Badi, which forms part of the land categorized as 'johar paitan'. The petitioner has further prayed that the respondent no.2-District Collector, Hanumangarh may be directed to consider the proposal for regularisation of the possession over the disputed land pursuant to recommendation made by Naib Tehsildar, Chhani Badi vide communication dated 1.12.14.
2. It is noticed that the residents of village Chhani Badi filed PIL being D.B.C.Writ Petition No.9313/17 before this court seeking directions to the respondents herein to implement the orders dated 17.11.14 and 20.11.14 directing removal of all the encroachments made over the land mentioned therein, which forms part of the land of johar paitan.
3. The writ petition preferred as aforesaid was disposed of by a Bench of this court vide order dated 8.8.17, directing the SDM, Bhadra and Naib Tehsildar, Chhani Badi to ensure that orders which have been passed by them are enforced and they were directed to comply with the directions issued within two months on the receipt of the order with the copy of the writ petition and the annexures annexed therein.
4. Pursuant to the order passed by the Division Bench, by the impugned notice, the petitioner herein has been directed to remove the encroachment made on the land measuring 3600 sq. ft. comprising khasra no.92 and 93, which according to the respondents forms part of johar paitan. In these circumstances, the petitioner preferred a petition seeking review of order dated 8.8.17 passed by the Division Bench as aforesaid. The review petition was disposed of by the Division Bench vide order dated 5.10.18, which reads as under:
"1. The applicant has filed a writ petition on the same pleadings which have been made in the application. Suffice it to state that the order dated 08.08.2017 in respect of which clarification is sought does not decide any fact either in favour of the writ petitioners or against the applicant. The order only directs the revenue authorities to take cognizance of unauthorized encroachments on the subject lands forming part of the pleadings in the writ petition and take action as per law.2. It is the claim of the applicant that it is in lawful possession of the land for which pattas have been issued in its favour on 22.11.1981, 07.07.1985 & 20.09.1999.3. Since this issue has been raised in a substantive writ petition filed by the applicant, we are of the opinion that no clarification of the order dated 08.08.2017 is required for the reason the order does not determine the right of any party.4. The right of the applicant, would be decided in the writ petition filed by the applicant.5. The application is disposed of accordingly."
5. In the present writ petition, vide order dated 2.8.18 passed by a coordinate Bench while issuing notices to the respondents, by way of interim relief, the respondents were directed not to take coercive action against the petitioner.
6. Learned counsel appearing for the petitioner contended that the petitioner is patta holder of the land occupied by it and thus, the impugned notice issued treating him to be an encroacher is per se illegal. Learned counsel submitted that the petitioner was not party to the PIL decided by this court and in terms of the directions issued, the petitioner who is holding the title over the land in question cannot be dispossessed. Learned counsel submitted that in the proceeding initiated by Tehsildar, Chhani Badi vide order dated 31.12.14, the petitioner was directed to be evicted from the disputed land treating the same to be the land forming part of johar paitan. The legality of the said order was challenged by the petitioner before the Additional Collector, Nohar by way of an appeal. The appeal was allowed vide order dated 8.12.15, the order dated 31.12.14 passed by the Naib Tehsildar, was set aside and a committee of Patwari and Land Record Inspector was constituted to take measurement of the land and thereafter, to take appropriate action if the factum of encroachment by the petitioner on the land forming part of johar paitan is proved. However, no proceedings pursuant to the said order were taken by Naib Tehsildar, Chhani Badi and thus, the action of the respondents in initiating the proceedings for dispossessing the petitioner without giving him an opportunity of hearing, is ex facie violative of principle of natural justice.
7. On the other hand, learned counsel appearing for the respondents submitted that it is a matter of record that the disputed land forms part of johar paitan and thus, keeping in view the directions issued by the Division Bench, the action of the respondents in initiating proceedings for removal of the encroachment made by the petitioner, cannot be faulted with. Learned counsel submitted that the land forming part of johar paitan is not available for allotment and thus, the patta if any issued by the Gram Panchayat of the land not vested in it, is ex facie without jurisdiction and void.
8. Section 16 of the Rajasthan Tenancy Act, 1955 (for short "the Act"), specifies the lands in respect whereof no khatedari rights shall accrue, which inter alia include the land use for casual and occasional cultivation in the bed of a river or tank, land covered by water and use for the purpose of growing Singhara or other like product, land acquired or held for a public purpose or a work of public utility and land which has been set apart or is, in the opinion of the Collector necessary for the flow of water therein into any reservoir or tank of drinking water for a village or for the surrounding villages. Thus, the land falling within the perimeter of tank or pond of the village, its boundary or the catchment area being the land of public utility, is not available for allotment for the purpose of extension of abadi or any other use.
9. In 'Hinch Lal Tiwari vs. Kamla Devi & Ors.', (2001) 6 SCC 496, the Hon'ble Supreme Court while dealing with the issue relating to the allotment of land forming part of the pond, observed:
"13. It is important to notice that the material resources of the community like forests, tanks, ponds, hillock, mountain etc. are nature's bounty. They maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality life which is the essence of the guaranteed right under Article 21 of the Constitution. The Government, including the Revenue Authorities i.e. Respondents 11 to 13, having noticed that a pond is falling in disuse, should have bestowed their attention to develop the same which would, on one hand, have prevented ecological disaster and on the other provided better environment for the benefit of the public at large. Such vigil is the best protection against knavish attempts to seek allotment in non-abadi sites."
10. In the matter of 'Abdul Rahman vs. State of Rajasthan', (2004) 4 WLC (Raj.) 435, a Bench of this Court has already issued directions to the State Government to remove encroachment in the catchment area of the water bodies and in 'Suo Moto Vs. State of Rajasthan' (S.B.C.Writ Petition No.11153/11), decided by Jaipur Bench of this Court vide order dated 29.5.12, specific directions (6 of 8) [CW-885/2018] have been issued restraining the allotment of the land falling in catchment areas of water bodies like Johar, Nala, Tank, River, Pond etc. and it is further directed that the appropriate action shall be taken for cancellation of the allotment made in defiance of Section 16 of the Act.
11. In the matter of 'Jagpal Singh & Ors. vs. State of Punjab & Ors.', 2011 ACR SCW 990, while declining to interfere with the order of the High Court, dismissing the writ petition preferred against the order of the Commissioner, setting aside the order of the Collector, whereby the directions were issued to the Gram Panchayat to transfer the land forming part of the pond to the occupants thereof, the Hon'ble Supreme Court issued directions to all the State Governments in the country in the following terms :
"22. Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthoized occupants of Gram Sabha /Gram Panchayat/ Poramboke/ Shmlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land."
12. Suffice it to say that under the law if the tank, nadi or talab is required to be protected, then obviously, its boundary and catchment area are also required to be protected.
13. However, in the instant case, the petitioner disputes the correctness of the report submitted by Patwari halka to the Naib Tehsildar, Chhani Badi indicating that it has made encroachment upon 3600 sq. ft. land forming part of gair mumkin johar and gair mumkin paal comprising khasra no.92 ad measuring 0.987 hectare and khasra no.93 ad measuring 0.139 hectare respectively.
14. Admittedly, the order of Naib Tehsildar, Chhani Badi dated 31.12.14 stands set aside by the Additional Collector, Nohar vide order dated 8.12.15 and the directions have been issued for taking measurement of the land occupied by the petitioner and thereafter, to take appropriate action if the petitioner is found to be in occupation of the land forming part of johar paitan.
15. Taking into consideration the totality of the facts and circumstances of the present case, we are of the opinion that the Additional Collector having issued the directions as aforesaid, the same needs to be complied with and the petitioner should not be removed from the land in question straight away, without ascertaining the factum of its being in unauthorised occupation of the land forming part of johar paitan.
16. Accordingly, the petition is disposed of with the directions that the committee constituted by the Additional Collector vide order dated 8.12.15 shall take the measurement of the land occupied by the petitioner within a period of two weeks from the date of receipt of certified copy of this order and if it is found that the petitioner is in possession of the land forming part of johar paitan or gair mumkin paal, the encroachment shall be removed forthwith, the land shall be taken possession of the State and restore to its original use. The District Collector, Hanumangarh shall file the compliance report before this court within a period of eight weeks. No order as to costs.
(DINESH MEHTA),J (SANGEET LODHA),J
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