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Rajasthan High Court · body

2002 DIGILAW 1857 (RAJ)

Lakh Singh v. State of Raj.

2002-11-20

D.N.JOSHI, RAJESH BALIA

body2002
Honble BALIA, J.–Heard learned counsel for the parties. (2). The petitioner has filed this Public Interest Litigation, challenging the allotment of land, which is alleged to be part of the village pond of village Raniwara Kalan, District Jalore and the part of Panchayat Samiti, Raniwara. The petitioner has placed on record Ex.1, Jamabandi of Samvat Yeas 2012 to 2015 corresponding to years 1955-56 to 1958-59 which shows four bighas and six biswas of land of Khasra No.404 in the village as pond. Annexure-2 is a Jamabandi for succeeding Samvat Years 2016 to 2019, repeating the same entry. Annexure-3 is a Jamabandi for Samvat Years 2054 to 2057 corresponding to Callendar year 1997-98 to 2000-01 alongwith land of Khasra No.284/32 admeasuring 9.92 acres have all been shown to be `Gair Mumkin Nada stating that land is under water, with this premise, the petitioner has further averred that in financial years 1987- 88, Rs.90,000/- were sanctioned for the purpose of repairs and maintenance of the said water pond out of which Rs.68,787/- were actually spent. It is submitted that the land in question is used by the villagers as a source of storing the rain water which is used as drinking water for the villagers as well as cattle of the village and surrounding area of the villages Raniwara Kalan. (3). The continuous utility of the said pond as a source of storing natural rain water, and antiguity of its origin is denied by the respondents. This is not in dispute that the land of the bed of village pond as per land record is sought to be allotted to Meghwal Sammaj for constituting a hostel building by impugned order dated 6.8.2001. (4). The petitioners case is that the natural water pond which existed in village Raniwara Kalan cannot be made available for construction of any building, but is sought to be allotted to Meghwal Sammaj, which effects the ecological balance adversely and is against the national policy to improve harvesting of rain water. (5). Apart from contesting on merit a preliminary objection has been raised that some of the villagers have filed a civil suit also for cancellation of order dated 6.8.2001 permanent injunction alongwith an application under Order 39, Rule 1 and 2 CPC for restraining the defendants in suit, including respondent No.4 from raising any construction over the land in dispute. (5). Apart from contesting on merit a preliminary objection has been raised that some of the villagers have filed a civil suit also for cancellation of order dated 6.8.2001 permanent injunction alongwith an application under Order 39, Rule 1 and 2 CPC for restraining the defendants in suit, including respondent No.4 from raising any construction over the land in dispute. The application for temporary injunction filed in support of that civil suit has been dismissed by the Civil Court on 14.2.2002. However, it is not in dispute that the present petitioner is not a party to this suit at all. (6). On merits, reliance has been placed on the Rajasthan Land Revenue (Allotment of Unoccupied Govt. Agricultural Lands for the construction of Schools, Colleges, Dispensaries, Dharamshalas and other buildings of public utility), Rules, 1963 which enables the Government to allotment of beds of river or tank subject to prior approval of State Government for public utility purposes and on decision in Moolchand & Ors. vs. State of Rajasthan & Ors. (1), wherein the Division Bench has held that under the amended Rules, 1963, the Revenue Authorities have necessary power to allot the land even of bed of a tank or river notwithstanding that the same were not permissible under the Rules of 1961. (7). The respondent No.4 in a separate reply has raised the same contentions. (8). Coming to preliminary objections about exercise of extra ordinary jurisdiction. In this case when a civil suit for the like relief is pending in civil court at the behest of some of the villagers of the village and an application for temporary injunction has failed, this Court ought not to interfere to take over the proceedings of the civil court and that the petitioner has not disclosed the facts about pending litigation in the writ petition. (9). So far as the objection as to non-disclosure is concerned, it is not even the case of respondents that the petitioner was a party to that suit in his name. The fact that some of the members of the village polity have chosen to file said civil suit, in our opinion does not affect the right of other member of members of the village to invoke extra ordinary jurisdiction of this Court by way of filing a public interest litigation. The fact that some of the members of the village polity have chosen to file said civil suit, in our opinion does not affect the right of other member of members of the village to invoke extra ordinary jurisdiction of this Court by way of filing a public interest litigation. When the matter concerns deprivation of the basic requirement and right of humanity to have access to water storage by natural source and because of the geographical situation, it is very essence of life to have reach to village pond where rain water collects to secure basic need of human existence. If right to each natural water is threatened by any act of State, the right to constitutional remedies to protect such rights which forms part of right to life, for a speedy relief far outweigh the expediency of awaiting the result of civil suit. Pendency of a civil suit at the behest of somebody else for like reliefs cannot come in the way of exercise of extra ordinary jurisdiction, in appropriate cases. Existence of alternative remedy or even availability of such alternative remedy, does not take away the discretion of this Court to entertain a grievance. Though as a matter of judicial restraint and on settled principle, ordinary this Court will not entertain such petitions. It is not a matter of jurisdiction but ultimately matter of exercise of judicial discretion and self imposed restriction. (10). In appropriate cases where non-exercise of such extra-ordinary jurisdiction can result in abrogation of the rights of people of that village altogether if grievance is found to be true the Court will be justified in entertaining the petitioner. Under Article 21, there is no prohibition that different set of person cannot resort to different remedial forums. Until final decision is rendered the right of any individual cannot be defeated to seek constitutional remedy by pointing finger to others who have chosen to different forum. We, therefore, over-rule the preliminary objection. (11). Under Article 21, there is no prohibition that different set of person cannot resort to different remedial forums. Until final decision is rendered the right of any individual cannot be defeated to seek constitutional remedy by pointing finger to others who have chosen to different forum. We, therefore, over-rule the preliminary objection. (11). Undoubtedly, Rules of 1963, referred to above, confers the power of Revenue Authorities to allot land of river- bed or a water tank bed in any village for the construction of any buildings of public utility with the previous sanction of the State Government and that has been accepted by a Division Bench of this court with reference to the definition of land in the Land Revenue Act and the Rules of 1963 thereunder. (12). However, we find that provisions of Section 16 of the Rajasthan Tenancy Act, were not brought to the notice of the Bench, which by a non-obstantee clause over-rides not only the other provisions of Tenancy Act but over-rides all other laws in making the agricultural land of a river-bed or water tank bed unavailable for permanent cultivation by conferring khatedari rights. Temporary cultivation in such beds is permitted, obviously when the river bed or water tank is dried up and bed- land is available. Apparently such land is not available for permanent use. Whether a land which is not at all available for permanent use through a non obstantee provision can be made available by framing rules as a subordinate legislation under Land Revenue Act has not been considered in the aforesaid decision and it requires a fresh look on the subject. (13). In such circumstances, we would have ordinarily referred the question about the scope of enabling power of respondents No.1 to 3 in making allotment of the land situated at the bed of water tank to determine the question whether it falls within the ambit of Rule making authority to provide for such enabling power to allot land of river bed or water-tank-bed for raising construction of permanent nature and destroying its character as river or water tank. However, for reasons to be stated hereinafter, we are of the opinion that the said question need not be decided for the purpose of this writ petition as the relief is claimed directly on the basis of impingement of right to life guaranteed under Article 21 of the Constitution of India, of the villagers of Raniwara Kalan and if such rights are violated the mere enabling provision embodied in the Rules of 1963 read with Land Revenue Act even if accepted to be there, would not avail against setting aside the order which violates fundamental rights of people. The storage of rain waters at the natural water reservoir are part of the environment and essential for ecological balance. Right to reach water is in the domain of natural rights of every human being which does not depend upon declaration by any State about their existence and are inalienable. If any act of the State affects such right resulting in disturbing the delicate ecological balance of the area by destroying the natural water reservoir, a bounty conferred by nature, the courts constituted under the Constitution of India viz. the High Courts and Supreme Court have obligation to extend its jurisdiction to restore those rights to those to whom it belongs. (14). In such circumstances, the enabling power to allot land of river bed or water tank bed if at all validly can be used in extreme case of dire necessity. Such enabling power cannot be invoked routinely as in the case of other unoccupied government agricultural lands by which no public right is affected. (15). The Supreme Court in Hinch Lal Tiwari vs. Kamala Devi & Ors. (2) was considering the like situation as has been raised before us. It was a case in which a land which was forming part of pond in village Ugapur, Taluka Asnao, District Sant Ravidas Nagar (U.P.) was allotted for construction of residences in the year 1988. The allotting authority under the Uttar Pradesh Revenue Laws had made an order of allotment on 25.2.1999. The Additional Collector cancelled the said allotment in question by holding that the land forming part of the pond could not be allotted. (16). The allotting authority under the Uttar Pradesh Revenue Laws had made an order of allotment on 25.2.1999. The Additional Collector cancelled the said allotment in question by holding that the land forming part of the pond could not be allotted. (16). The said order of Additional Collector dated 12.3.1999 was successfully challenged before the High Court of Allahabad which affirmed the order of allotment by referring to the Rules giving such authority to the respondents which was Allotting Authority for the allotment of land in question. The plea of the respondent before the Supreme Court in appeal against the judgment of High Court was that pond in question has fallen in disuse and as no more its utility is left as a water storage reservoir, allotment of land of its bed was valid. The Court set aside the order of the High Court by holding that the land of pond even if has fallen in disuse because of drying up is not available for allotment as it disturbs the ecological balance and is against the mandate of Article 21 of the Constitution. The Court said: ``It is important to notice that the material resources of the community like forests, tanks, ponds, hillock, mountain etc. re natures 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 pubic at large. Such Vigil is the best protection against Knavish attempts to seek allotment in non-abadi sites. (17). In the present case also the land record produced by the petitioners are undisputed which shows the existence of a pond at a disputed site. The land in question was sub-merged in water until very recent time as per land record for the year 1997-98 to 2000-01. The ratio of the Supreme Courts decision in Hinch Lal Tiwaris case (supra) squarely applies to this case. The land in question was sub-merged in water until very recent time as per land record for the year 1997-98 to 2000-01. The ratio of the Supreme Courts decision in Hinch Lal Tiwaris case (supra) squarely applies to this case. The land in question is a part of existing pond as per the land record was even found by the Civil Courts as a prima facie finding in their orders dismissing the temporary injunction application moved by the villagers. Further the temporary injunction application has been rejected primarily on the ground that alternative tanks have been provided for storing water for the cattle during cattle fairs and that a construction for a hostel, for a school is also the utilisation of land for public utility, therefore, no public cause suffers. (18). Unhesitatingly we can reach the conclusion that the land in question is a part of bed of an existing pond suited in village Raniwara Kalan and was submerged in water atleast until years 1997-98 to 2000-01 and was not available for allotment as it directly affects the ecological balance and affects the right of villagers of Raniwara Kalan, adversely to claim access to rain water stored through natural reservoir, which is part of right to life guaranteed under Article 21. (19). No case of exceptional emergent necessity is made out by respondents which could justify such allotment of land of bed of villages water pond which resulted in loss of its character as water pond. (20). Accordingly, the petition is allowed. The impugned order dated 6.8.2001 for allotment of the land to respondent No.4 which forms part of the bed of water pond in village Raniwara Kalan is quashed. The respondents No.1 to 3 are directed to restore the water pond situated in Khasra Nos. 891 and 892 and the other Khasra Nos. mentioned in Ex.3 by removing the construction, if any, which may have come into that area and are further directed to take necessary action for redevelopment and restoration of that water pond in the light of observations made by the Supreme Court in Hinch Rams case (supra), no further allotment of land in the bed of water pond in question be made. A report in that regard be submitted to Court by 31.3.2003. (21). A report in that regard be submitted to Court by 31.3.2003. (21). Before parting with the case we take notice of the fact that the land which has been allotted to respondent No.4 was undoubtedly for public utility in aid of extending education facilities to the backward area. The State Government is, therefore, directed to consider allotment of suitable land in alternate for the same purpose to respondent No.4, within three months. (22). According to respondent No.4 a hostel has been constructed and is in use, since the current rainy season is over, it is prayed by learned counsel for respondent No.4 to grant them time to remove the existing construction. In view of this submission we further direct the respondent No.4 shall remove the construction if any raised on the land in question within a reasonable period, in any case before 31st of May, 2003. (23). No order as to costs.