Research › Search › Judgment

Rajasthan High Court · body

2016 DIGILAW 1004 (RAJ)

Ram Swaroop v. State of Rajasthan

2016-07-15

SANGEET LODHA

body2016
JUDGMENT : Sangeet Lodha, J. 1. This writ petition is directed against order dated 1.10.2012 of the Board of Revenue, Rajasthan, Ajmer, whereby an appeal preferred by the petitioner herein, against the order dated 30.12.2002 passed by the Revenue Appellate Authority (RAA), Hanumangarh, affirming the order dated 26.9.2002 passed by the Additional Collector, Nohar, cancelling the allotment of the land ad measuring 1.265 hectare, comprising Khasra No. 345, made in favour of the petitioner by the Assistant Collector, Bhadra on 10.1.2002 under 'Prashasan Gaon Ke Sang' stands dismissed. 2. The relevant facts are that the land ad measuring 1.265 hectare comprising Khasra No. 345 situated at village-Rohi, Tehsil-Bhadra, District-Hanumangarh, was allotted to the petitioner vide order dated 10.1.2002 issued by the Assistant Collector, Nohar, under "Prashashan Gaon Ke Sangh". The legality of the order was questioned by the Tehsildar (Revenue), Bhadra, by way of an application under Section 11/14 of Rajasthan Colonisation Act, 1954 before the Additional Collector, Nohar, District Hanumangarh, on the ground that the land allotted to the petitioner is recorded in the revenue record as gair mumkin johar paitan, which is not available for allotment. The Additional Collector inter alia found that the land in question which is categorised as per the revenue record as 'gair mumkin paitan' was not available for allotment and accordingly, cancelled the allotment made in favour of the petitioner. Aggrieved thereby, the petitioner preferred an appeal before the Revenue Appellate Authority (RAA), Hanumangarh, which stood dismissed vide order dated 30.12.2002. The second appeal preferred by the petitioner stands dismissed by the Board of Revenue by the order impugned. Hence, this petition. 3. The entire edifice of the writ petition was raised by the petitioner on the ground that Rule 17 of Rajasthan Colonisation (Allotment & Sale of Government Land in Indira Gandhi Canal Colony Area) Rules, 1975 (for short "the Rules of 1975"), specifically provides that the price to be charged for johar paitan land situated anywhere, shall be four times of the reserved price fixed by the State Government and thus, the allotment of land forming part of johar paitan is also available for allotment. It is to be noticed that the allotment of the land in favour of the petitioner was made by the Assistant Collector, Bhadra, vide order dated 10.1.2002, under Rajasthan Colonisation (Bhakra Project Government Lands Allotment & Sale) Rules, 1955 ("Rules of 1955") and not under the Rules of 1975. Faced with this situation, the learned Counsel appearing for the petitioner contended that in respect of the allotment and sale of johar paitan land in the Bhakra Project Area, the State Government has issued a notification dated 16.7.1981 in pursuance of Rule 17 of the Rules of 1955 providing the different prices and therefore, nothing turns on the question that the rates with regard to the allotment of the land forming part of johar paitan have not been specifically provided under the Rules of 1955. Accordingly, learned Counsel submitted that the cancellation of allotment made in favour of the petitioner ignoring the said notification, is not sustainable in the eyes of law. 4. On the other hand, learned Government Counsel submitted that as per provisions of Section 16 of Rajasthan Tenancy Act, 1955 ('the Act of 1955'), the land which is part of the bed of tank or held for public purpose cannot be allotted to anybody and therefore, allotment made in favour of the petitioner was ex facie contrary to law. Learned Counsel submitted that the allotment of the land in favour of the petitioner also violates Rule 4 of Rajasthan Land Revenue (Allotment of Land for Agriculture Purposes) Rules, 1970 (for short "the Rules of 1970"). Learned Counsel submitted that keeping in view a Bench decision of this Court dated 29.5.2012 in the matter of Suo Motu v. State of Rajasthan (S.B.C. Writ Petition No. 11153/2011), the State Government has already issued specific circular not to allot the lands of prohibited categories as specified under Section 16 of the Act of 1955 and the directions have been issued to cancel the allotment already made and thus, the decision of Board of Revenue, which is in conformity with a Bench decision of this Court, does not warrant any interference by this Court. 5. I have considered the rival submissions and perused the material on record. 6. It is not in dispute that in the revenue record, the land in question is recorded as 'gair mumkin paitan'. 5. I have considered the rival submissions and perused the material on record. 6. It is not in dispute that in the revenue record, the land in question is recorded as 'gair mumkin paitan'. Obviously, the rain water flow from the 'paitan land' to the 'johar', which is the source of drinking water for the village. Indisputably, Section 16 of the Act of 1955, puts restriction on khatedari right being accrued in respect of the land covered by the water or the land acquired or held for a public purpose or a work of public utility and for this reason, Rule 20 of the Rules of 1970, specifically exclude the allotment of the land falling within the categories specified in Rule 4 of the Rules of 1970, which inter alia puts restriction on the land covered by Section 16 of the Act of 1955. Merely because, there is no specific provision incorporated under the Rules of 1955, imposing restriction on the allotment of the land categorised as 'johar paitan' the authority does not become entitle to allot such land held for public purpose in defiance of provisions of Section 16 of the Act of 1955. In this view of the matter, in the considered opinion of this Court, the Board has committed no error in holding that the land which forms part of 'johar paitan' was not available for allotment. 7. It is pertinent to note that the Rules of 1955 does not permit the allotment of the land forming part of johar paitan and therefore, merely because, the State Government has issued a notification prescribing a different price for the land forming part of the johar paitan, the allotting authority does not become entitle to allot such land in defiance of the provisions of Section 16 of the Act of 1955. 8. In Abdul Rahman v. State, 2005 RRT 59, a Bench of this Court has issued direction to the State Government to remove encroachment in the catchment area of the water bodies. In the matter of Suo Motu v. State of Rajasthan (S.B.C. Writ Petition No. 11153/2011), disposed of by Jaipur Bench of this Court vide order dated 29.5.2012, specific directions are issued restraining allotment of the land falling in catchment areas of water reservoirs like Johar, Nala, Tank, River, Pond etc. In the matter of Suo Motu v. State of Rajasthan (S.B.C. Writ Petition No. 11153/2011), disposed of by Jaipur Bench of this Court vide order dated 29.5.2012, specific directions are issued restraining allotment of the land falling in catchment areas of water reservoirs like Johar, Nala, Tank, River, Pond etc. 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. 9. For the aforementioned reasons, in the considered opinion of this Court, the order impugned passed by the Board of Revenue does not suffer from any infirmity, illegality or jurisdictional error so as to warrant interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 10. In the result, the petition fails, it is hereby dismissed. No order as to costs.