Shambhu Ram vs State Of Rajasthan
2021 Latest Caselaw 8697 Raj

     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.

(7 of 7) [CW-10457/2018]

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
                                    41-Aditya/-









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