AI Structured Summary
Not yet generated for this judgment
Judgment
By way of this writ petition (PIL), the petitioner has questioned legality of order dated 3.9.93 (Annexure 6) issued by the Sub Divisional Officer,
Mount Abu, whereby the land measuring 0.19 biswa comprising khasra no.529 categorised as ‘khal khaddar’ and land measuring 1500 sq. ft.
comprising khasra no.591 categorised as ‘gair mumkin nadi’ has been allotted to Gram Panchayat, Santpur for extension of abadi. The
petitioner has also questioned legality of the order dated 3.3.03 (Annexure 8) and 13.2.04 (Annexure 10) issued by the District Collector, Sirohi,
whereby the land measuring 0-01 bigha, 0.18 bighas and 12.03 bighas, comprising khasra no.591 have been allotted to the Executive Engineer, PHED,
reserved for Police Chowki and for Government offices respectively. Further, the directions are sought to the respondents to remove all
encroachments from the land of the nadi comprising khasra no.529 and 591 of revenue village Santpur, Tehsil Aburoad.
Briefly stated the relevant facts are that the land measuring 13.03 bighas comprising khasra no.591 and 1.14 bighas comprising khasra no.529 of
village Santpur, Tehsil Aburoad, is categorised as ‘gair mumkin nadi’ in the revenue record. As per the revenue map, khasra no.591 is
surrounded by khasra no.529 on the one side, a road leading to village (khasra no.590) and a road (khasra no.592) leading to town Ambaji. As per
averments made in the petition, the said pond (nadi) known as Dudeshwar Talab gets filled up after monsoon and remain as such for months together
benefiting the entire area and helping in maintaining the water level area. Even, the contract for fishing is awarded by Panchayat Samiti in the said
pond.
Precisely, the grievance raised in the petition is that the land forming part of the nadi and its catchment area which is not available for allotment for
any other purpose, have been so allotted by the District Collector and the same has been encroached upon by various unscrupulous persons. It is
submitted that vide order dated 3.3.93 issued by the Sub Divisional Officer, Mount Abu, land measuring 0.19 biswa comprising khasra no.589 and
1500 sq. ft. comprising khasra no.591 forming part of ‘khal khaddar’ and ‘nadi’ respectively were allotted to Gram Panchayat, Santpur
for extension of abadi. Thereafter, vide order dated 3.3.93, the land measuring 0-01 bigha comprising khasra no.591 was allotted to Executive
Engineer, PHED and vide order dated 13.2.04, the lands measuring 0.18 bighas and 12.03 bighas were set apart for Police Chowki and Government
offices respectively. That apart, number of encroachments have been made by the unscrupulous persons which has resulted in obstructing free inflow
of the water into the pond. In this regard, the photographs are also placed on record by the petitioner.
A reply to the writ petition was filed on behalf of the official respondents wherein it is not disputed that the land in questionforms part of ‘gair
mumkin nadi’. It is stated that the land forming part of the nadi was allotted for public offices and no private person has been benefited thereby.
The respondent no.6, Gram Panchayat, Santpur in its reply to the petition has taken the stand that vide order dated 3.9.93, 1500 sq. ft. land was
allotted to the Gram Panchayat for extension of abadi in the larger interest of general public, since the shops were already constructed by the Gram
Panchayat upon the said land, which have been rented out to the local residents. It is submitted that the area of Dudeshwar Talab gets filled up
occasionally and thus, uses and utility of the said pond is minimum and therefore, the land comprising Khasra No.591 was set apart for special
purposes upon the request made by local residents as well as Gram Panchayat, Santpur.
Keeping in view the categorical stand of the State that land allotted/set apart forms part of the nadi , which is not available for allotment, vide order
dated 15.11.16, a coordinate Bench of this court issued directions to the respondents in the following terms:
‘Looking to this fact, we deem it appropriate to direct the respondents to restore the entire land of “Nadi†(water reservoir) as that was existing
prior to making of first allotment in the year 1993. Necessary orders in this regard shall be passed by the competent authority within a period of one
month from today.â€
During the pendency of the petition, applicants Jai Singh, Raghunath Singh and Madhav Singh, sons of Karat Singh made application for impleading
them as party respondents, stating that they are having their house in abadi land but some of part of the house is situated in khasra no.529 which was
prior to settlement was numbered as khasra no.407, which was before the proceedings of settlement was mentioned as ‘Talab Ki Pal’ in the
revenue record. They claimed to be in lawful possession of the land for 40 years, whereupon they have constructed a house. The application preferred
by the applicants was allowed by this court vide order dated 12.1.17 and they were impleaded as party respondents no.8 to 10 (hereinafter referred to
as ‘private respondents’).
The private respondents in their reply to the petition while questioning the conduct of the petitioner and maintainability of the PIL at his instance, has
taken the stand that their forefathers are residing in khasra no.529 for last more than four decades. It is submitted that the proceedings were initiated
against the father of the private respondents under Section 91 of Land Revenue Act, 1956 (for short “the Act of 1956â€), however, ultimately, the
proceedings culminated in regularisation of possession of their father on the land measuring 755 sq. yard on payment of Rs.63.75 and thereafter, a
house has been constructed over the land in question. It is submitted that after regularisation of the possession, the father of the private respondents
under the directions of the revenue authorities, deposited conversion charges a sum of Rs.45,485/- with the SDO, Mount Abu, however, the
conversion proceedings could not be finalised and thereafter, after insertion of Section 90B in the Act of 1956 w.e.f. 14.2.02, the Municipal Board,
Aburoad, again insisted for the change of the land use and payment of conversion charges, accordingly, the application was moved for proceedings
under Section 90B of theAct of 1956 and the land was surrendered in favour of the Municipal Board, Aburoad. On depositing the conversion charges,
patta was issued on 13.9.11, a photo stat copy where of is placed on record as Annexure R/9. According to the private respondents, prior to
settlement, khasra no.529 was numbered as khasra no.407 which was categorised in the revenue record as ‘Talab Ki Pal’, however, in Samvat
2019 in renumbered khasra i.e. khasra no.529, the nature of the land was recorded as ‘gair mumkin nadi’ and thus, according to the private
respondents, the land categorised as ‘Talab Ki Pal’ has been wrongly recorded in the revenue record as ‘gair mumkin nadi’. It is
submitted that during the pendency of the petition, in compliance of the directions issued by this court, without giving an opportunity of hearing to the
respondents, regularisation of land measuring 0.14 bighas comprising khasra no.529, has been cancelled, which is without jurisdiction.
It is pertinent to note that pursuant to the order dated 15.11.16, as per the compliance report filed on behalf of the State, the orders impugned issued
allotting/setting apart the land for various purposes and the order dated 5.8.85 passed by Tehsildar, Aburoad, regularising possession over 0.05 bighas
land, out of 01.14 bighas land comprising khasra no.529, in favour of Karat Singh s/o Anar Singh, the father of private respondents, have been
cancelled and the directions have been issued to the SDO, Mount Abu to remove the encroachment in khasra no.529 and 591.
Learned counsel appearing for the petitioner contended that in view of the bar contained in Section 16 of Rajasthan Tenancy Act, 1955 (for short
“the Act of 1955â€), the land which is recorded in the revenue record as ‘gair mumkin nadi’ cannot be divested for any other use and thus,
the orders impugned allotting/setting apart/regularising the land forming part of nadi in favour of various Departments/Gram Panchayat and other
individuals are void and thus, the land so allotted/set apart deserves to be restored to its original use. It is submitted that the order of regularisation of
possession over the land forming part of nadi obtained by the private respondents in collusion with the revenue authorities, is ex facie void and does not
confer any right upon them. In support of the contention, learned counsel has relied upon Bench decision of this court in the matter of ‘Abdul
Rahman vs. State of Rajasthan’, (2004) 4 WLC (Raj.) 435 and Single Judge decision in ‘Suo Moto vs. State of Rajasthan’ (S.B.C.Writ
Petition No.11153/11, decided on 29.5.12) and the decision of the Hon’ble Supreme Court in the matters of ‘Jagpal Singh & Ors. vs. State of
Punjab & Ors.’, 2011 ACR SCW 990 and ‘Meghwal Samaj Shiksha Samiti vs. Lakh Singh & Ors.’, 2011 DNJ (SC) 849. While relying
upon a decision of the Supreme Court in the matter of ‘Hinch Lal Tiwari vs. Kamla Devi & Ors.’, (2001) 6 SCC 496, learned counsel submitted
that it is the duty of the State authorities to protect the tanks, ponds etc. to maintain the ecological balance and therefore, the appropriate directions
deserve to be issued to restore the position of the nadi as it was existing prior to the allotments made.
Mr. Rajesh Panwar, learned AAG fairly submitted that in view of the bar contained in Section 16 of the Act of 1955, the land which is recorded in
the revenue record as ‘gair mumkin nadi’ could not have been allotted/set apart for any other purpose and therefore, in compliance of the
direction issued by this court, the orders issued allotting/setting apart/regularising the possession over such land, have been cancelled vide orders dated
6.1.97 and 9.1.97 (Annexure R/2 to R/5) and the land use thereof stands restored in the revenue record as ‘gair mumkin nadi’. Learned AAG
submitted that vide order dated 29.12.16 issued by the District Collector, Sirohi, appropriate directions have already been issued to restore the original
position of the nadi. The existence of nadi and the position thereof as depicted in the photographs produced is not disputed by the official respondents.
Mr. J.L.Purohit, Senior Advocate, appearing on behalf of the private respondents submitted that the regularisation of the land and patta issued in
favour of the private respondents cannot be set at naught in perfunctory manner without giving them an opportunity of hearing. Learned counsel
submitted that the regularisation made in the year 1985 cannot be cancelled after lapse of more than 30 years and thus, the order passed by the
District Collector, cancelling the orders of regularisation and setting apart of the land in question for abadi/official building is ex facie illegal and
arbitrary. Learned counsel submitted that no nadi exists on the spot as on the date and therefore, at this belated stage, the petition preferred by the
petitioner, who has criminal track record, should not be entertained by this court. In support of the contentions, learned counsel has relied upon Bench
decisions of this court in the matters of ‘Director General, Research and Development vs. State of Raj. & Ors.’, 2012(1) RRT 94 and
‘Ramkaran vs. State of Rajasthan’, 2016(1) RRT 718. Learned counsel submitted that the private respondents who are in settled posssession of
the disputed land cannot be dispossessed without recourse to the law and therefore, the action of the District Collector, Sirohi in cancelling the
regularisation made in favour of the private respondents is not sustainable in the eyes of law. In support of the contention, learned counsel has relied
upon a decision of the Hon’ble Supreme Court in the matter of ‘Rame Gowda (Dead) by LRs. vs. M.Varadappa Naidu (Dead) by LRs. &
Anr.’, (2004) 1 SCC 769.
We have considered the rival submissions and perused the material on record.
Indisputably, as per the revenue record the land in question comprising Khasra No.591 and 529 of Village Santpur is categorised as ‘gair
mumkin nadi’ (Pond) which is a public utility meant for public use. It is noticed that in the first instance vide order dated 31.7.85 passed by the
Tehsildar, Aburoad, illegal possession over the land measuring 0.5 bigha i.e. 755 sq.yard, comprising Khasra No.529 was ordered to be regularised in
favour of father of the private respondents observing that there exists his ‘Chhapra and Bada’ over the said land for more than 10 years.
Thereafter, vide order dated 3.9.93, land measuring 1500 sq. ft. out of 13 bighas 3 biswa, land comprising Khasra No.591 was allotted to Gram
Panchayat, Santpur for extension of abadi solely on the ground that Gram Panchayat had already constructed shops over the said land. Vide yet
another order dated 3.3.03, land measuring 1 bigha comprising Khasra No.591 min was allotted to Executive Engineer, PHED for the purpose of Well
and construction of a room and finally vide order dated 13.2.04, while leaving 0.18 bighas land for the police chowki of town Aburoad, the remaining
land 12.03 bighas comprising Khasra No.591 min was set apart for government offices and thus, the entire land of Khasra No.529 & 591 min, which
is categorised as ‘gair mumkin nadi’ is sought to be divested for other uses.
Section 16 of the Act of 1956, 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.
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’.
In Hinch Lal Tiwari’s case (supra), 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.â€
In the instance case, the character of the disputed land continues to be of a pond, which is apparent from the material placed on record including
the photographs, the genuineness whereof is not in dispute. A fortiori, as per the verdict of the Hon’ble Supreme Court, a natural water resource
is not being put to its proper use, then, the authorities should have bestowed their attention to develop the same and to abandon it or put it to some
other use. Thus, the contention sought to be raised on behalf of Gram Panchayat and private respondents that the pond does not always remain filled
up and therefore, it lost its utility, to say the least, is absolutely frivolous. Even if the pond is covered with the water in rainy season, the same has to be
protected and developed by the authorities concerned.
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’ (supra), 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.
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 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.â€
Coming to the decision cited by the learned counsel on behalf of private respondents, in Ramkaran’s case (supra), a Bench of this Court has
not dissented with the view taken by a Bench of this Court in Abdul Rahman’s case (supra) rather, declined to interfere with the regularization
made in favour of the occupants of the land on the ground of inordinate delay of 24 years inasmuch as there was no evidence to indicate that the land
which was allotted to the respondents therein comprised ‘Nadi’. In this regard the observations made in para no.6 & 7 of the judgment are self
explanatory :
“6. We do not find any merit in the argument of the learned counsel for the appellant that the land which was allotted to respondent No.2 falls in
‘nadi’ as it has come on record that the Tehsildar and the Land Allotment Advisory Committee had concluded that on ground there was no
‘nadi’ and it was plain land which was being cultivated by the respondent No.2. The Tehsildar had inspected the site and this observation had
been duly reflected in his report dt. 5.9.1973 that there was neither any ‘nadi’ nor pond on the land in question.
There is no dispute about the directions issued by this Court in the case of Abdul Rehman Vs. State of Rajasthan (supra) that the Government
should restore catchment areas to original shape and all and which is shown as drainage, channels as on 15.8.1947 should be declared government
land and should be restored as such. However, as already noticed herein above, there is no evidence to indicate that the land which was allotted to the
respondent comprised ‘nadi’ .†(Emphasis added)
Similarly, in the matter of Director General, Research & Development (supra), on the basis of the material on record, the court found that the
disputed land though recorded as gair mumkin nadi, was hilly and even land and there existed no nadi on the spot.
Thus, decisions rendered by this court in Ramkaran’s case and Director General’s case (supra), after consideration of the facts of the
case noticed above, do not help the petitioner in any manner.
In L.Rs. of Rame Gowda’s case (supra), the Hon’ble Supreme Court observed that the settled possession or effective possession of a
person without title would entitle him to protect his possession even as against of the true owner and even the true owner may only recover the
possession by taking recourse to law.
In the instant case, on the basis of the installation of chhapra and bara over the disputed land, the petitioner claimed regularisation of his
possession. Indubitably, the land in question being forming part of the nadi/talab was not available for allotment keeping in view the provisions of
Section 16 of the Act. It is pertinent to note that what to say about the land forming part of nadi, the Tehsildar has no jurisdiction even to set apart the
land for any purpose inasmuch as, under the law such power is vested with the District Collector. The circular alleged to have been issued by the
Government for regularisation of the possession, does not vests power with the Tehsildar to regularise the possession of any person over the land
forming part of the nadi, diversion whereof for any other use is prohibited under the law. That apart, the Tehsildar was not even competent to deal
with the regularisation of the land for the purpose of residential use on the strength of the circular alleged to have been issued by the State
Government. In this view of the matter, the order of regularisation passed by the Tehsildar regularising the possession of the father of the private
respondents over the disputed land, acting without jurisdiction, is void and does not create any right in favour of the private respondents and thus, the
same has rightly been cancelled by the competent authority.
In view of the conclusions arrived at as aforesaid, we are of the opinion that the objection raised by the private respondents regarding
maintainability of PIL at the instance of the petitioner, who is alleged to have criminal track record, is not required to be gone into, inasmuch as, on the
basis of the facts which have come on record, this court could have proceeded with this PIL even suo moto.
As a result of discussion above, we are firmly of the view that the traditional water source of the village has to be protected and should be left
open for the benefit of public at large. Thus, the action of the competent authority in cancelling the orders impugned, allotting/setting apart the land
forming part of gair mumkin nadi comprising khasra no.529 and 591 min, deserves to be upheld and the interim directions issued by this court vide
order dated 15.11.16 deserve to be made absolute.
In the result, the petition succeeds, it is hereby allowed. The action of the respondents in cancelling the orders impugned dated 3.9.93 (Annexure
6) issued by the Sub Divisional Officer, Mount Abu, the order dated 3.3.03 (Annexure 8) and 13.2.04 (Annexure 10) issued by the District Collector,
Sirohi and order dated 31.7.85 (Annexure R/8) passed by Tehsildar, Aburoad, vide orders dated 6.1.17/9.1.17 (Annexures R/2 to R/5) placed on
record by the official respondents alongwith compliance report dated 16.8.18 is upheld. The interim order dated 15.11.16 passed by this court is made
absolute. The District Collector, Sirohi shall ensure that all encroachments made and constructions raised over the land forming part of nadi are
removed expeditiously and the nadi is restored in its original form, in any case, within a period of three weeks from the receipt of certified copy of this
order. The District Collector, Sirohi shall file the compliance report before this court alongwith his own affidavit on or before 17.12.18. A copy of this
order may be sent to the District Collector, Sirohi forthwith.