This court dismissed a petition challenging the cancellation of land allotment in river channel land ('gairmumkin-river'). The court held the cancellation valid, dismissing arguments based on both the nature of the land and the delay.
Impugned orders dated 23.12.2011, 26.06.2014, and 11.02.2016 accepted by Board of Revenue are affirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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In the High Court of Judicature for Rajasthan at Jaipur Bench Jaipur O R D E R S.B. Civil Writ Petition No.4541 of 2016 Sriram & Others VERSUS State of Rajasthan and Others
Date of Order ::: 05.09.2016
Hon'ble Mr. Justice Kanwaljit Singh Ahluwalia
Mr. Bhaskar Dagar Gandhi, Counsel for the petitioners ***
Instant petition has been preferred under Article 226 read with Article 227 of the Constitution of India praying interalia that the order dated 23.12.2011 (Annexure-3) passed by the Tehsildar (Land Record) Tehsil Weir District Bharatpur, whereby he made a reference to the Court of Additional District Collector, Bharatpur that Khatedari right in respect of four bighas of land falling in Khasra No.723/11 be cancelled, as the allotment made to the petitioners in favour of Mawasi, Harikishan, Sriram s/o Bhanwar Singh and Bhanwar Singh is void-ab-initio, be set aside. Tehsildar (Land Record) Weir District Bharatpur made a reference and for the reason that the land, in question was part of the bed of the river and, therefore, could not be allotted, in view of the directions issued by the Division Bench of this Court in D.B. Civil Writ Petition No.1536/2003; titled as Abdul Rahman Vs. State of Rajasthan & Others, decided on 02.08.2004.
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A further prayer has been made that the order dated 26.06.2014 (Annexure-5) passed by Additional District Collector, Bharatpur forwarding reference (Annexure-3) dated 23.12.2011 made by Tehsildar (Land Record), Tehsil Weir District Bharatpur to the Board of Revenue for Rajasthan, Ajmer be also set aside, along with the order dated 11.02.2016 (Annexure-06) passed by Board of Revenue for Rajasthan, Ajmer, whereby reference was accepted.
As per averments made in the present petition, four bighas of land falling within Khasra No.723/11 in the revenue estate of Village Dharsoni Tehsil Weir District Bharatpur was mutated in the names of Mawasi, Harikishan, Sriram s/o Bhanwar Singh and Bhanwar Singh as Khatedars.
According to the petitioners, as per the ‘jamabandi of samvat 2012-15 and the jamabandi of samvat 2065-68. the said land is neither Government nor ‘gairmumkin river’.
The above said two ‘jamabandis’ have been annexed with the present writ petition as Annexure-1 and 2 respectively.
However, Tehsildar Weir, District Bharatpur in his capacity as a landholder on 23.12.2011 vide Annexure-3 made a reference to the Court of Additional District Collector, Bharatpur.
In the reference Annexure-3, it was stated that as per the revenue record, four bighas of land falling within Khasra No.723/16 in the revenue estate of Village Dharsoni Tehsil Weir
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District Bhratpur was a ‘gairmumkin river’. It was further stated that the mutation bearing No.983/13.01.86, whereby the land was mutated in the names of Mawasi, Harikishan, Sriram s/o Bhanwar Singh and Bhanwar Singh is void-ab-initio, as the land recorded as ‘gairmumkin-river could not be allotted, in view of the directions issued by the High Court in case of Abdul Rahman (supra).
Petitioners, vide Annexure-4 filed reply to the reference made in the Court of District Collector, Bharatpur. They took a stand that it has been wrongly recorded in the revenue record that the land in question is ‘gairmumkin-river’.
The Additional District Collector, Bharatpur, in its order dated 26.06.2014 (Annexure-5) rejected the plea of the petitioners and held that the land, in question indeed, as per the revenue record is a ‘gairmumkin-river’. The Additional District Collector, Bharatpur rejected the plea raised by the petitioners on the ground that after delay, reference could not be entertained.
Having said so, Additional District Collector, Bharatpur, vide its order dated 26.06.2014 (Annexure-5), had forwarded the reference for affirmation to the Board of Revenue for Rajasthan, Ajmer. The Board of Revenue for Rajasthan, vide order dated 11.02.2016 (Annexure-6), accepted the reference.
In the present writ petition, following two arguments have been raised:-
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Firstly, it is contended by the learned counsel that as per the ‘jamabandis’ (Annexures-1 & 2) land, in question is not ‘gairmumkin-river’ and, secondly, it is contended by learned counsel that a grave error has been committed by the authorities to accept the reference made by the respondent No.4 – Tehsildar Weir, District Bharatpur, after long delay of five decades.
Having heard the learned counsel appearing for the petitioners, this Court is of the view that the concurrent finding of fact has been given by the Additional District Collector, Bharatpur vide Annexure-5 and the Board of Revenue for Rajasthan, Ajmer vide Annexure-6 that the land, in question in the revenue record has been recorded as ‘gairmumkin-river’.
The Board of Revenue for Rajasthan, Ajmer noted that the mutation was entered in the names of Mawasi, Harikishan, Sriram s/o Bhanwar Singh and Bhanwar Singh, as a result of the decree passed by the Assistant Collector, Bharatpur. It was noted by Board of Revenue at Ajmer that prior to the passing of decree in revenue record, land, in question has been recorded as ‘gairmumkin-river’. This fact also find mention in the mutation transferring the land.
It was further noticed by the Courts below that the entries in the ‘jamabandi’s relied by the petitioners have been made on the basis of decree passed by the Additional Collector. Hence, subsequent to the passing of decree entry of the land changed from ‘gairmumkin-nadi to a Khatedari land.
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It is to be noted that a Division Bench at Principal Seat of this Court while exercising jurisdiction under Public Interest Litigation, in the case of Abdul Rahman vs. State of Rajasthan & Others, D.B. Civil Writ Petition No. 1536/2003 [2004(4) WLC (Raj.) 435], felt the need to protect tanks/ponds for proper and healthy environment. The Division Bench in the case of Abdul Rahman's case (supra) observed that no Nadi land can be used for any sort of construction or any agriculture purposes. In pursuance of the directions issued by the Division Bench in the case of Abdul Rahman's case (supra), the Expert Committee was constituted and the recommendations given by the Committee were noted in the
case of Abdul Rahman in Para-15. The said para reads as under:-
“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:
(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.
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(ii) In urban and rural areas, the demarcation of drainage channels must essentially be done by constructing side walls of appropriate height and thickness.
Having noted the suggestions of the Committee, the
Division Bench of this court in Abdul Rahman's case (supra), issued
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direction to the State Government to chalk out a plan to take effective steps for restoration of the catchment area to its original shape. A further direction was issued that the State Authorities shall take all effective steps to fulfill the objectives of the directions issued by the Court.”
It is the case of the State Government that in pursuance of the directions issued by this Court in the case of Abdul Rahman (supra), Tehsildar Weir District Bharatpur had proposed a reference under Section 82 of the Rajasthan Land Revenue Act, 1956. On the said reference, Additional District Collector, Bharatpur passed the impugned order dated 26.06.2014 (Annexure-5). In the said order, District Collector noted that as per directions issued by this Court in the case of Abdul Rahman (supra) in respect of ‘gairmumkin-river’, original position as it existed on 15.08.1947 is to be restored.
The second argument raised by the learned counsel appearing for the petitioners that a grave error was committed by the Courts below in cancelling allotment made in the favour of petitioner after long delay of five decades is also not tenable.
It is to be noted that as per directive principles of the State policy enshrined in the Constitution of India (Article 48A and 51A), the State and the citizens are under obligation to protect and improve the natural environment including forests, river, lakes etc.
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Counsel appearing for the petitioners has relied upon
Joint Collector Ranga Reddy District & Anr. vs. D. Narsing Rao & Ors. [(2015) 3 SCC 695] , to extend argument that in cases where no period of limitation is prescribed, the power of revision or otherwise should be exercised within a reasonable period. It will be apposite here to reproduce the following part of the judgment Joint Collector Ranga Reddy District (supra) as under:-
“To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable 10/11 and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of thirdparty rights, that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight (Emphasis Supplied). Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority.”
A perusal of the judgment rendered by the Hon'ble Apex Court in the case of Joint Collector Ranga Reddy District (supra) reveals that in the said case it was pleaded that the allotment had been made on the basis of fraud, whereas in the present case, the allotment has been cancelled to give effect to the directions issued by a Division Bench of this Court in the case of Abdul Rahma (supra). Thus cogent explanation for delay is available in the present case. It has been held by this Court in Public Interest Litigation that the allotment made was against the public interest and ecology and therefore, such allotment are
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required to be cancelled.
It is to be noted that the directions were issued by this Court in the case of Abdul Rahman (supra) on 02.08.2004 Tehsildar (Land Record) Tehsil Weir District Bharatpur, respondent No.4 in pursuance thereof in the year 2006 had initiated the reference. Therefore, as held by the Board of Revenue, delay in exercising revisional power cannot be interpreted in favour of the petitioners.
In view of above, there is no merit in the present writ petition and the same is, hereby, dismissed.
Upon dismissal of main petition, the stay application, filed therewith does not survive and the same is also dismissed.
[ Kanwaljit Singh Ahluwalia ] J.
ashok/
3 issues framed by the court
Whether the mutational entry of land recorded as 'gairmumkin-river' by revenue authorities is void-ab-initio in light of High Court directions.
Whether dismissal of the reference due to a delay of five decades is sustainable where the delay was triggered by the court's directions in a PIL.
Whether the writ petition prayers seeking cancellation of allotment and set aside of reference orders should be allowed.
Colour shows how this judgement treated each authority
Abdul Rahman Vs. State of Rajasthan & OthersApplied¶5
D.B. Civil Writ Petition No.1536/2003 titled as Abdul Rahman Vs. State of Rajasthan & Others, decided on 02.08.2004
[2004(4) WLC (Raj.) 435]Referred
Joint Collector Ranga Reddy District & Anr. vs. D. Narsing Rao & Ors.Relied on¶65
Joint Collector Ranga Reddy District & Anr. vs. D. Narsing Rao & Ors. [(2015) 3 SCC 695] · Who else cites this
2 provisions across 2 enactments
Sriram & Others
State of Rajasthan
Kanwaljit Singh Ahluwalia
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
