HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
D.B. Civil Writ Petition No. 10457/2018
Shambhu Ram S/o Shri Panna Ram, Aged About 69 Years, By
Caste Bishnoi R/o Savreej Tehsil Phaoldi, District Jodhpur (Raj.).
----Petitioner
Versus
1. State of Rajasthan, through the Chief Secretary, Govt. of
Rajasthan, Secretariat, Jaipur
2. Revenue Secretary, Govt. of Rajasthan, Secretariat,
Jaipur.
3. Collector, District Jodhpur.
4. Gram Panchayat, Savreej, Tehsil Phalodi, District Jodhpur.
----Respondents
For Petitioner(s) : Mr. Devi Lal Vyas
For Respondent(s) : Mr. Harshit Bhurani, Additional
Government Counsel
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE MR. JUSTICE RAMESHWAR VYAS
Judgment
1st April, 2021
PER HON'BLE MR. SANGEET LODHA,J.
1. This writ petition (PIL) is filed by the petitioner seeking directions to the respondents to remove the encroachment and restore the status of gair mumkin agore land comprising khasra no.431 measuring 19.18 bighas and khasra no.433 measuring 19.02 bighas of Village Sanvreej, Tehsil Phalodi, District Jodhpur.
2. Precisely, the case set out by the petitioner is that the lands ad measuring 24 bighas & 18 biswas comprising khasra no.431 and 24 bighas & 2 biswas comprising khasra no.433 were (2 of 7) [CW-10457/2018] recorded in the revenue record as gair mumkin agore. Out of the said land, 5 bighas land in each khasra was divested by the State Government vide order dated 28.6.94 for expansion of abadi. After diversion of the land for abadi purposes as aforesaid, the Sarpanch, Gram Panchayat issued pattas to many persons including his relatives. The legality of the pattas issued was questioned before the revisional authority by one Shri Chunni Lal. The revision petition was allowed by the Additional District Collector (II), Jodhpur vide order dated 31.3.08, however, the persons who were allotted the land continued in possession. Later, Gram Panchayat, Sanvreej adopted a resolution for diversion of 10 bighas land each out of the land comprising khasra no.431 & 433. The District Collector, Jodhpur vide order dated 9.8.02 allotted 20 bighas land, 10 bighas each out of land comprising khasra no.431 & 433 to the Sarpanch, Gram Panchat, Sanvreej for the purpose of expansion of abadi. The petitioner served the respondents with the notice for demand of justice for restoration of gair mumkin agore land, but to no avail. Hence, this petition.
3. It is contended on behalf of the petitioner that the land forming part of gair mumkin agore i.e. catchment area of nadi or talab, cannot be divested for any other use and thus, the respondents are under an obligation to restore the land of catchment area and all encroachments made on the land forming part of the catchment area of nadi, deserve to be removed.
4. A reply to the writ petition has been filed on behalf of the State taking the stand that the land measuring 32.15 bighas comprising khasra no.431 and measuring 27.02 bighas comprising khasra no.432 was recorded in the revenue record as gair mumkin agore during the settlement. Out of khasra no.431, land (3 of 7) [CW-10457/2018] measuring 7.17 bighas and out khasra no.433, land measuring 3.00 bighas was recorded as sadak (Road) in the name of Public Works Department. Thereafter, the land measuring 5 bighas each from khasra no.431 & 433 was allotted to Gram Panchayat for expansion of abadi. The said land was mutated in the name of Gram Panchayat vide mutation no.882. Later, the land measuring 10 bighas each out of aforesaid khasras, was allotted by the District Collector to Gram Panchayat, Sanvreej for expansion of abadi and the land was mutated in favour of Gram Panchayat vide mutation entry no.1015. It is submitted that 15 bighas each from the aforesaid khasras stand converted for abadi purposes and there are residential houses and shops are existing at the site and only small portion of the land is lying vacant.
5. By way of an additional affidavit, it is brought on record by the petitioner that the pattas issued in favour of eight persons have been cancelled and three persons have constructed shops over the disputed land and many persons are occupying the land unauthorisedly. It is averred that certain persons have constructed their shops over the disputed land whereas the pattas were issued by the Gram Panchayat for residential purpose.
6. Learned counsel appearing for the petitioner contended that the land forming part of gair mumkin agore, the catchment area of nadi or talab cannot be divested for any other use and thus, the pattas of the said land if any, issued do not create any right in favour of allottees and the same deserve to be treated as non est. Relying upon decisions of the Supreme Court in the matter of Jagpal Singh & ors. vs. State of Punjab & Ors.: 2011 ACR SCW 990 and decisions of this Court in the matters of Abdul Rahman vs. State of Rajasthan: (2004) 4 WLC (Raj.) 435, order dated (4 of 7) [CW-10457/2018] 12.1.17 passed in Gulab Kothari vs. State of Rajasthan & Ors.: D.B.C.Writ Petition No.1554/2004 and Kanti Lal vs. State of Rajasthan & Anr.: 2019 (1) CJ (Civ.) (Raj.) 153, learned counsel submitted that it is the duty of the State Authorities to protect the water bodies and the catchment area to maintain ecological balance and therefore, the writ petition deserves to be allowed as prayed for.
7. On the other hand, learned Additional Government Counsel reiterating the stand taken in the reply to the writ petition, submitted that a portion of the land forming part of the gair mumkin agore land in question already stands divested for expansion of abadi and other use. However, on being asked by the Court as to how the land forming part of the agore i.e. catchment area can be divested to any other use, the learned AGC had no answer.
8. We have considered the rival submissions and perused the material on record.
9. Section 16 of the Rajasthan Tenancy Act, 1955 (for short "the Act of 1955"), 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 (5 of 7) [CW-10457/2018] catchment area being the land of public utility, is not available for allotment for the purpose of extension of abadi or any other use.
10. In Kanti Lal's case (supra), this Court while considering the issue regarding protection of the land forming part of catchment area in terms of provisions of Section 16 of the Act of 1955, observed:
"16.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 and thus, nothing turns on the question that according to the private respondents earlier in the revenue record the land alleged to have been regularised in their favour, comprising Khasra No.407 was shown in the revenue record as 'Talab Ki Pal' and not 'gair mumkin nadi' as such. As a matter of fact in the order dated 31.7.85 passed by the Tehsildar, Aburoad, regualrising possession of father of the private respondents over the land measuring 755 sq. yard comprising Khasra No.529, it is specifically observed that land sought to be regularised forms part of 'gair mumkin nadi'. (emphasis added)
11. Moreover, in Abdul Rahman's case (supra), 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.Civil Writ Petition No.11153/11, decided on 29.5.12, decided by Jaipur Bench of this Court vide order dated 29.5.12, specific directions 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 of 1955.
12. In Jagpal Singh's case (supra), 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 (6 of 7) [CW-10457/2018] 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."
13. In Gulab Kothari's case (supra), this Court has issued directions to the State Authorities to take effective steps for conservation and preservation of natural resources i.e. rivers, other water bodies and catchment area. Further, the State Authorities have been directed to undertake a drive to remove all encroachments made over the natural resources operating thereon and restore such natural resources by taking appropriate action.
14. Thus, in view of the position of law settled as above and directions already issued by this Court time and again, the land forming part of gair mumkin agore i.e. catchment area, cannot be permitted to be divested to any other use and all encroachments made on the said land deserve to be removed forthwith.
15. Accordingly, the writ petition is allowed. The order dated 28.6.94 & 9.8.02 issued by the District Collector, Jodhpur divesting the use of disputed gair mumkin agore land for the purpose of expansion of abadi and other purposes, shall stand set aside. The respondents shall take appropriate proceedings in accordance with law, for cancellation of the pattas already issued, if not already cancelled. The encroachments over the land forming part of gair mumkin agore shall be removed expeditiously, in any case, within a period of three months from the date of this order. It is made clear that cancellation of the pattas already issued and the removal of the persons occupying such land on the strength of the pattas issued in their favour, shall not preclude the respondents from taking appropriate measures for rehabilitation of the patta holders.
16. The respondents shall file a compliance report before this Court latest by the first week of July, 2021. The matter though disposed of, shall be listed before the Court for perusal of the compliance report on 7.7.2021.
(RAMESHWAR VYAS),J (SANGEET LODHA),J
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