JUDGMENT : 1. This writ petition under Articles 226 & 227 of the Constitution of India has been preferred claiming the following reliefs: “It is therefore, most respectfully and humbly prayed that the instant writ petition may kindly be ordered to be allowed and a writ, order or direction in the appropriate nature may kindly be issued in favour of the humble petitioner; and i) The impugned order 10.01.2023 (Annex.10) may kindly be ordered to be quashed and set aside. ii) The application so preferred by private respondents herein may kindly be ordered to be rejected with cost throughout. Any other order of direction, which this Hon’ble Court deems fit and proper in the facts and circumstances of the present case may kindly be passed in favour of the humble petitioner.” 2. As the pleaded facts would reveal, a land (admeasuring 4 Bighas) comprising Khasra No.2698/1253 at revenue Village Rajmathai was being utilized for the purpose of Abadi, Panchayat Bhawan, Rajiv Gandhi Kendra, Patwar Bhawan etc., and adjacent to the said land, there was an Agore land comprising Khasra No. 2699/1253. A resolution was taken by the petitioner-Gram Panchayat to get the land set-apart for the purpose of Gair Mumkin Abadi, and further resolved to transfer a land of the equal measurement for development of the Agore land. 2.1. In pursuance of the said resolution, an application was submitted before the Sub-Divisional Officer (SDM), Bhaniyana District Jaisalmer, that the land in Khasra no. 1253 on which government buildings are built was recorded as Gair Mumkim Agore land, whereupon, vide order 30.07.2021 passed by the SDM, the Tehsildar, Bhaniyana was directed to set apart the land comprising Khasra No. 1656/2458 measuring 0.6474 hectare as Agore land and land comprising Khasra no. 1253 as Abadi land. Subsequent to the conversion into Abadi land, the Gram Panchayat issued various pattas in regard to the land in question and the patta holders also started residing thereafter. 2.2 Subsequently, an application under Section 9 of the Rajasthan Land Revenue Act, 1956 (hereinafter referred to as ‘Act of 1956’) was preferred by the private respondent herein before the learned Board of Revenue (BoR) for Rajasthan, Ajmer against the aforementioned order of the SDM, whereupon, vide the impugned order dated 10.01.2023 passed by the learned BoR, while allowing the said application, the order passed by the SDM was set aside. Thus, aggrieved by the impugned order passed by the learned BoR, the present petition has been preferred, claiming the afore-quoted reliefs. 3. Learned counsel for the petitioner submitted that in the application preferred by the private respondent before the BoR, other than the Tehsildar, neither the present petitioner nor the SDM concerned was impleaded as a party respondent, and without summoning of the record, the learned BoR had proceeded to pass the impugned order. 3.1. It was further submitted that in its order dated 04.08.2021, the Tehsildar, mentioned that after looking into the report of the Patwari concerned and the application of the Gram Panchayat, even if the land is set apart for development of the Abadi, no loss would be caused to the Government Exchequer, in any manner. 3.2. In furtherance, it was submitted that as per the notification issued by the State Government on 17.01.1966, in exercise of powers conferred by clause (d) of Section 26 (1) of Act of 1956, the Government of Rajasthan conferred on all Sub Divisional Officers of the State, the power of a Collector under Section 92 of the said Act, to set apart the land for development of Abadi, and thus the SDM in the present matter had power to set apart the land. 3.3. In support of the submissions, reliance was placed on the judgment rendered by the Hon’ble Apex Court in the case of The State of Rajasthan and Anr. v. Ultratech Cement Ltd. (Civil Appeal No. 5841/2022, decided on 26.08.2022) wherein the Hon’ble Apex Court opinionated that the judgment rendered in the case of Abdul Rehman v. State of Rajasthan (2004 (4) WLC (Raj.) 435) was misread, in the said case, by the appellant-State Government and the decision taken in the case would not come in the way of allotting land to the petitioner therein. 4. On the other hand, learned counsel for the respondents opposed the aforesaid submissions made on behalf of the petitioner. 5. Learned counsel for the respondents No.3 to 9 submitted that the land of Khasra no. 2698/1253 was part of the land of Khasra no. 1253 which was reserved for catchment area (Gair Mumkim Agore); the panchayat bhawan, Rajeev Gandhi Sewa Kendra and Patwargrah were not in existence in khasra no. 1253, instead those constructions were lying in Khasra no. 1656/2458 which was Abadi land; setting apart of the land of khasra no. 2698/1253 was part of the land of Khasra no. 1253 which was reserved for catchment area (Gair Mumkim Agore); the panchayat bhawan, Rajeev Gandhi Sewa Kendra and Patwargrah were not in existence in khasra no. 1253, instead those constructions were lying in Khasra no. 1656/2458 which was Abadi land; setting apart of the land of khasra no. 1253 was sought for the sole purpose of Abadi, due to the vested interest of Sarpanch of the petitioner-Gram Panchayat, over the catchment area, as shops had been constructed over the same by them. 5.1. It was also submitted that the petitioner had concealed the fact that one Roop Singh had filed D.B. Civil Writ Petition (PIL) No. 17360/2022 (Roop Singh Vs. The State of Rajasthan & Ors., decided on 25.11.2022) before this Hon’ble Court, seeking direction to demolish constructions raised by private respondents as the same being illegal encroachment over the government land. 5.2. It was further submitted that the land of Khasra no. 1253 was not utilized for construction of the official buildings nor any Abadi was there on the said land, but the SDM, without jurisdiction, ordered for setting part the Gair Mumkin Agore land for Abadi purposes, even when there was a bar under Section 16 of the Rajasthan Tenancy Act, 1955 in regard to change of the land use. 5.3. In furtherance, it was submitted that learned BoR, vide the impugned order, has set aside the order of the SDM, after considering the notification dated 09.09.1976, which clearly shows that the power of setting apart of land for expansion of the Abadi vested in the District Collector, with the previous consent of the State Government, and thus the SDM had no power to pass an order for setting apart the Gair Mumkim Agore land for the purpose of development of Abadi. 6. Mr. R.D. Bhadu, learned Deputy Government Counsel appearing on behalf of respondents No.1 & 2 furnished before this Court a site (mauka) report dated 05.07.2023, which indicates that at present, over the land in question, there is construction of a Panchayat Building, Patwarghar, Post Office, Panchayat Parisar, interlocking road, residential houses & shops; khasra No.1254 was recorded as Nadi; it was also found that people are residing, all around the Nadi area and; between Nadi and new Abadi, there exists Rajmathai-Bhikhodai road. The said mauka report is taken on record. 7. The said mauka report is taken on record. 7. On behalf of the respondents, reliance was placed on the following judgments: (a) Hanumana Ram & Anr. v. The District Collector & Ors. (D.B. Spl. Appl. Writ No. 808/2018 decided on 07.04.2021) (b) Shambhu Ram v. State of Rajasthan & Ors. (D.B. C.W.P. No. 10457/2018 decided on 01.04.2021) (c) Abdul Rehman v. State of Rajasthan, 2004 (4) WLC Raj. 435. 8. Heard learned counsel for the parties as well as perused the record of the case alongwith the judgments cited at the Bar. 9. This Court observes that the petitioner filed an application before the concerned SDM seeking setting apart of the land for the purpose of Gair Mumkin Abadi and to transfer a land of equal measurement for development of the Agore land, whereupon vide order 30.07.2021 passed by the SDM, the Tehsildar was directed to set apart the aforementioned land; subsequent to this, the petitioner-Gram Panchayat issued various pattas pertaining to the land in question and the patta holders also started residing thereafter; however an application under Section 9 of the Act of 1956 was preferred by private respondent before the learned BoR and vide the impugned order 10.01.2023, the order of the SDM was set aside. 10. This Court further observes that in the impugned order passed by the BoR it was clearly held that only the concerned District Collector had the power to pass an order for setting apart of a land, for any particular purpose, and thus, the order passed by the SDM in the present matter was without jurisdiction and against the provisions of law, and thus, the same was rightly set aside vide the impugned order passed by the learned BoR. 11. This Court further observes that in accordance with the judgment rendered in the case of Abdul Rehman (supra), petitioner-Gram Panchayat in the present case, could not have issued the pattas, as the land in question was an Agore land, which was being sought to be converted into Abadi land, and the shops had also been constructed over the said land. 11.1. Relevant portion of the judgment rendered in Abdul Rehman (supra) is reproduced as hereunder:- “(15). 11.1. Relevant portion of the judgment rendered in Abdul Rehman (supra) is reproduced as hereunder:- “(15). The Committee has made suggestions for restoring the catchment areas to their original shape and use: “(3) Suggestions for restoring the catchment areas to their original shape and use: Looking to the site visit by the State Level Expert Committee in September 2003 and General Survey Reports received from the District Collectors and Chairmen, District Expert Committee, following suggestions are made: 1. All land shown as drainage channels like nalla, rivers, tributaries etc. as on 15.8.19 All 147 should be declared as Govt. land. Any conversions made after 15.8.1947 should be declared illegal. The relevant act and rules must be amended accordingly. 2. Demarcation of catchment areas should be done by construction pillars at suitable spacing depending upon size of the catchment area with the help of GT sheet of scale 1:25000 or 1:50000 and/or Water Shed Atlas of Rajasthan prepared by the State Remote Sensing Application Centre, Jodhpur. 3. Demarcation of drainage channels- (i) In unhabited areas this can be done by installing pillars at suitable spacing or by constructing side wall depending upon size of drainage channel and its importance. (ii) In urban and rural areas, the demarcation of drainage channels must essentially be done by constructing side walls of appropriate height and thickness. 4. In the government owned lakes and other water bodies, the Khatedari rights of private persons in their submergence area should be brought under the ownership of the government. 5. The drainage channels in the catchment areas should be got inspected by engineering professionals and Patwaris. Wherever there are obstructions in nalla, it should be suitably removed by constructing culverts, deepening and widening of nallas etc. 6. Wherever there are any construction activities, which may interfere with the flow of water in drainage channels, no objection certificate must be obtained from the irrigation department. 7. The Anicuts more than 2m height above deepest nalla bed should be identified. The height more than 2m should be dismantled. 8. Wherever residential colonies have been constructed obstructing flow in drainage channels, the obstruction must be removed and nallas may be deepened/constructed. 9. On the periphery of lakes, ponds, water bodies in urban and rural areas, a pucca drain should be constructed on periphery of the water body to prevent entry of domestic, industrial and other waste in the water body. 10. 9. On the periphery of lakes, ponds, water bodies in urban and rural areas, a pucca drain should be constructed on periphery of the water body to prevent entry of domestic, industrial and other waste in the water body. 10. For soil conservation work, suitable guidelines must be issued by the Watershed & Soil Conservation Department so that these works make minimum possible interference with the flow of water. 11. The district administration should specify places for dumping various types of waste material. If any body is found to dump the waste material in other places, particularly drainage channels, then suitable punishment should be provided in the law. 12. The government should use television, radio and newspapers to create awareness in this matter. 13. Possibility should be explored to use marble slurry as construction material, for filling depressions etc. as has been done for disposal of fly ash from Thermal Power Houses. 14. The water quality of water bodies should regularly be monitored. 15. Wherever over-burden or waste materials generated from mines and processing units, have been dumped obstructing flow of water in drainage channels; diversion drains and check walls must be constructed. For that purpose, special condition should be incorporated in the lease/license agreement (16). Having given thoughtful consideration to the issue involved and the suggestions made, we direct the State Government to consider the recommendations of the Committee referred-to above and chalk out a plan to take the effective steps for restoring the catchment areas to their original shape. It is made clear that this order will not prevent the State Authorities from drawing-up or taking further steps more effectively to fulfill the objects of the directions issued by this Court. Three months time is granted for giving positive shape to the suggestions. The interim order dated 9.4.2003 granted by this Court is made absolute.” 12. This Court is also conscious of the judgment rendered by a Coordinate Bench of this Hon’ble Court at Jaipur Bench in S.B. Civil Writ Petition No.11153/2011 (Suo Motu Vs. State of Rajasthan, decided on 29.05.2012), whereby, one of the directions issued to the State Government, was to the effect that ‘Instructions be issued restraining allotment of land falling in catchment areas of water reservoirs like Johar, Nala, Tank, river, pond etc. State of Rajasthan, decided on 29.05.2012), whereby, one of the directions issued to the State Government, was to the effect that ‘Instructions be issued restraining allotment of land falling in catchment areas of water reservoirs like Johar, Nala, Tank, river, pond etc. Infringement of instructions should be viewed seriously with follow-up action against the defaulting officers and the beneficiaries so that tendency of illegal allotment of land may be stopped at all levels.’ 12.1. In pursuance of the aforesaid judgment, a circular No.P.10(3) Raj-6/2001/Part/142 dated 06.09.2022 was issued by the Revenue (Group-6) Department, Government of Rajasthan, Jaipur, all the District Collectors of the State of Rajasthan, to take all the necessary steps, in compliance of the said judgment; it was also directed vide the said circular, that during such exercise, in case any violation is proved, then the erring officer(s)/official(s) shall be subjected to disciplinary action under Rule 16 of the Rajasthan Civil Service (Classification, Control & Appeal) Rules, 1958. 13. The judgment of Ultratech Cement Ltd. (supra), as cited at the Bar on behalf of the petitioner-Gram Panchayat, also does not render any assistance to its case, because in the said case, there existed no natural water body on the subject land; however, in the present case, there exists a Naadi and encroachment, in the form of construction of shops, had been made, on the Agore land, which, amongst others, makes the factual matrix of the present case. 14. This Court is of the opinion that if a finding has to be arrived at, that in the present case, the water body or the catchment no more exists, then the same can only be done by a government order, to be preceded by due application of mind by the highest experts in regard to such consequent conclusion. The exercise of arriving at the findings as to the existence of Naadi or catchment or other prohibited areas cannot be left open to the revenue officials, that too without proper scientific explanation, as the topography / geography of such water bodies / catchment area and prohibited lands falling under Section 16 of the Rajasthan Tenancy Act cannot be defined in a short term period. 14.1. 14.1. It is relevant to note that in the State of Rajasthan, sometimes a river flows once in 30 years, and thus, any conclusion arrived at contrary to the land revenue records shall not only be detrimental to the long term existence of the features of land, but also can be deceiving, if the essential natural features are given a myopic burial. It is also a well known fact that the water bodies across the country have been reducing drastically; the State of Rajasthan is one the States, which has always faced severe water scarcity; though one of the reasons therefor is low rate of rainfall, but it cannot be ruled out that the greed of urbanization and concretisation is adding more severity to the water scarcity in the State, thereby engulfing the very ethos on which precious ecological /environmental balance rests. 14.2. If the revenue officials start changing the revenue map of the State or the place, upon being empowered to do so, then the day is not far away when all the water bodies will be covered by urban or Abadi land. 15. Thus, in light of the aforesaid observations, which derive strength from the aforementioned precedent law laid down in the judgments rendered in the case of Abdul Rehman (supra) and Suo Motu Vs. State of Rajasthan (supra), and looking into the factual matrix of the present case, this Court does not find it a fit case so as to grant any relief to the petitioner in the present petition. 15.1. Consequently, the present petition is dismissed. The respondent-State is accordingly directed to proceed and look into the matter, in light of the aforementioned precedent laws in the true letter and spirit. All pending applications stand disposed of.