Rajasthan HC in Ajay Kumar Sharma vs. State of Rajasthan [18.02.2015]

IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)

D.B. Civil Writ Petition No. 7423 of 2013

Decided On: 18.02.2015

Ajay Kumar Sharma

Vs.

State of Rajasthan

Hon'ble Judges/Coram:

Sunil Ambwani, Actg. C.J. and Prakash Gupta, J.

Counsels:

For Appellant/Petitioner/Plaintiff: Ram Rakh Sharma

For Respondents/Defendant: Surya Pratap Singh on behalf of Rajendra Prasad, AAG

JUDGMENT

Sunil Ambwani, Actg. C.J.

1. We have heard learned counsel appearing for the petitioner, and learned counsel appearing for the State-respondents. By this writ petition, the petitioner has prayed for a direction to remove the encroachments from the land in Khasra No. 157, area 2 Bigha, 18 Biswa in the village, recorded in the category of 'Siwai Chak', the nature of which is recorded as 'Gair Mumkin Johad'. It is alleged that a pond is constructed on the land, around which, unauthorized constructions have been raised, causing obstruction in the free flow of the water to the pond.

2. In paragraph 3 of the counter affidavit, affirmed by Mr. Brejesh Kumar, Tehsildar Buhana, District Jhunjhunu, it is stated that the Khasra No. 157 was in the category of 'Siwak Chak', and its nature was 'Gair Mumkin Johad'. Subsequent to the settlement operation, Khasra Nos. 156, 157 and 158 were consolidated, and a new Khasra No. 227 was carved out, admeasuring 8.86 hectares, recorded as 'Siwak Chak' land, and that the nature of the land was recorded as 'Gair Mumkin Abadi'. In the site inspection report prepared by the Patwari, it was found that at present the pond is constructed in 2300 sq.mtrs. area, and that there is no encroachment over the said portion of the pond. In the remaining portion of Khasra No. 227, pucca houses are in existence, where a number of families are residing.

3. In paragraph 6, it is stated that the petitioner himself has constructed a house and a STD in the Southern side of the pond, which is blocking the passage of water to the pond. The petitioner was a member of the Committee, appointed by Village Panchayat, which was given the charge of making a boundary wall. He, however, is wrongfully claiming the land and the constructions to be made by his predecessor late Shri Mukhram Sharma and wants to appropriate it for his use.

4. The letters of the Sarpanch, Gram Panchayat Kalakhari, District Jhunjhunu, demonstrate that the encroachments around the pond were removed by the Gram Panchayat from time to time. Shri Ajay Kumar Sharma (the petitioner) S/o Shri Ram Niwas Sharma, himself has made a pucca house and a STD; which is obstructing the free flow of water to the pond from Southern side.

5. In the rejoinder-affidavit, the petitioner has not denied that he has made constructions. He has stated that the constructions have been made in an 'Abadi area, and are not obstructing the free flow of the water from South to the pond.

6. We entirely agree with learned counsel appearing for the petitioner that in view of the judgments of Supreme Court in Hinch Lal Tiwari v. Kamala Devi, AIR 2001 SC 3215, and Jagpal Singh & Ors. v. State of Punjab & Ors. (Civil appeal No. 1132/2011), decided on 28.1.2011 : 2011(2) RLW 1389 (SC), all encroachments on the land of the pond should be removed, to protect the ecosystem and habitat of village. The ponds are the main source of water, especially in Rajasthan, for drinking water as well as water for cattle, and for various other requirements in the village.

7. We however find that since the petitioner himself is alleged to have encroached on the land, which is recorded as 'Johad', the writ petition has not been filed with bonafide intention. A person, who is alleged to have made constructions, which are obstructing the free flow of the water, is not entitled to be heard that if his constructions are found to affect the free flow of the water, demarcation may be made, and that his constructions may also be removed.

8. A public interest litigation cannot be entertained on behalf of a person, who is alleged to have made illegal constructions, causing the same nuisance which he alleges against other persons to be removed. The writ petition is dismissed with observation that the concerned authority of the Village Panchayat will continue to make efforts, so that the land recorded as pond, is not encroached, nor any encroachment is made to obstruct the free flow of the water to the pond.