- (1.) PETITIONERS who are resident of Diggi, Tehsil Malpura, District Tonk, have filed this writ petition in public interest as according to them they are interested in the preservation of public property and public utility places of village Diggi. Village Diggi is a place of pilgrim as the temple of Shri Kalyan Raiji Maharaj is situated there where several hundred thousands devotees come every year. On particular day in the year about one hundred thousand (one lac) people from Jaipur alone go on foot as PADYATRIES covering a distance of 85 kms. and similarly several thousand people from other places also. There is also a yearly fair known as 'jhulon KA MELA'. On this occasion also over a lac farmers and agriculturists attend the fair. There are 26 Dharamshalas in village Diggi which are used for staying of the pilgrims coming from various places. In village Diggi which falls under Gram Panchayat, there are three reservoirs, one of which is named as Megh Sagar Dam maintained by Irrigation Department and two tanks which are known as Vijay Sagar and Sharavan Sagar. PETITIONERS' case as set up in para 5 of the writ petition is that the above three dams and tanks are hardly sufficient to catre to the needs of the residents of Diggi as lacs of pilgrims visit Diggi every year. Their case then is that Megh Sagar dam is principally used as a source of irrigation and fields of the residents and agriculturists of village Diggi are supplied water through two canals known as right canal and left canal. This dam has been shown in the village map in Khasra No. 1371 measuring 22 bighas 8 biswas and is six feet deep. Besides this the area of the boundary (Pal) is 3 bighas 15 biswas comprising khasra No. 1373 and 5 bighas 2 biswas in khasra No. 1378, 5 bighas 19 biswas of land in khasra No. 1379 has been shown as a Khandi (pit) which has been formed as a result of taking of the sand at the time of construction of the dam and here also the depth of the water is about six feet and canal also passes through this Khandi. Petitioner Nos. 1 to 3, it is contended, irrigate their land through this water which is supplied through khandi and similarly 66 other cultivators making a total of 69 irrigate their lands through the water supplied. Revenue record has been produced in support of the aforesaid pleadings. The case of the petitioners is that Irrigation Department has a budget of maintenance of Rs. 80,000/- per year for this dam. Towards the South of this dam there is a public wharf (Ghat) ten feet in. length and ten feet in width for use of pilgrims. Towards the West of the Ghat there is a cattle-pond also for drinking water of the animals. Two public Urinals have also been constructed and towards the South out of 26 Dharamshalas in the village one of them belonging to respondent No. 6 is already constructed on two bighas of land, out of which 1-1/2 bighas towards its South is already lying vacant.
(2.) PETITIONERS' grievance is that non-petitioner No. 6 in 1991 entered into a conspiracy with Tehsildar, Malpura, respondent No. 4, and decided to illegally grap certain portion of the land comprised in Megh Sagar Dam. Tehsildar took an application from non-petitioner No. 6 for allotment of 5 bighas of land out of Khasra No. 1371 which is Megh Sagar Dam for construction of a Dharamshala and other public uses. The Tehsildar, Malpura addressed a letter to Administrator, Gram Panchayat, Diggi directing him to issue a No Objection Certificate for the allotment of the land in favour of non-petitioner No. 6, who following the directions issued No Objection Certificate. Tehsildar thereafter forwarded the papers to Collector, Tonk, who, in turn, submitted the papers to the State Government and the State Government without inviting objections from the public and without issuing any public notice, vide order dated 25. 1. 1993 sanctioned the allotment of 3 bighas 4 biswas of land out of 22 bighas, 8 biswas of khasra No. 1371 of Megh Sagar Dam to non-petitioner No. 6 for construction of water-hut, school premises, boarding houses and play-ground for the students. On receiving sanction from the State Government the Collector, Tonk vide his order, dated 19. 4. 1993 ordered the allotment vide Annexure 15. The petitioners' grievance is against the order~of the State Government, dated 25. 1. 1993 Annexure 1-4 sanctioning the land in favour of respondent No. 6 and the consequential of the order of the Collector, dated 19. 4. 1993 allotting the said land to respondent No. 6 and in this writ petition they have prayed for quashing both the orders mentioned above and seeking a further declaration that the land comprised in khasra No. 1371 of village Diggi, is not liable to be allotted for the purpose of construction of School-Boarding House, Dharamshala and allied purposes. It is contended on behalf of the petitioners that the land comprised in khasra No. 1371 is neither an agriculture land nor is unoccupied Government agriculture land and, therefore, the provisions of Rajasthan Land Revenue (Allotment of Unoccupied Government Agriculture Lands for Construction of School, Colleges, Dispensaries, Dharamshalas and other Buildings of Public Utility) Rules, 1963 (hereinafter referred to as "the Allotment Rules of 1963") would not apply and the allotment of land to respondent No. 6 is therefore, wholly illegal and without jurisdiction. It is then submitted that according to Rule 1 of Allotment Rules of 1963 unoccupied Government agriculture land can only be allotted if Najool or Abadi land is not available with the whole village and even in that case the mandate of the Rule is that unoccupied Government land which is to be allotted should be in order of priority mentioned therein, i. e. firstly Banjar land should be allotted. If there is no Banjar land, then unoccupied Barani land may be allotted. If the same is also not available, then unoccupied Govt. Agriculture land may be allotted, but it is submitted that by no stretch of imagination tank-bed land can be allotted under these rules. It is submitted that for finding out the meaning of the words 'agriculture land' reference will have to be made to the provisions of Rajasthan Tenancy Act, 1955 (hereinafter referred to as 'the Act of 1955') wherein under S. 5 (2) agriculture denotes the cultivation of the field and includes horticulture cattle breeding, dairy farming and poultry farming. It is submitted that in wider sense it may include land for pasture, forestry, betel cultivation, Tea and Coffee cultivation, growth of trees, cultivation of indigo of green vegetables but by no means the bank-bed. It is submitted that in all the revenue recordes this land has been shown as Gairmumkin Talab and it is also not denied by the respondents and, therefore, it is neither an agriculture land nor Abadi land so as to attract the provisions of the allotment Rules. It is then submitted that tank-bed can be allotted only for the purposes of cultivation and that too under the provisions of Rajasthan Land Revenue (Allotment of Bank Bed and Lands for Cultivation) Rules, 1961 (hereinafter referred to as 'the Bank bed Rules') which govern the land situated in the beds of tanks or rivers and the provisions of Allotment Rules of 1963 are not applicable to such land, yet the State Government has mis-applied the provisions and granted sanction for allotment of the said land. It is submitted that allotment of tank-bed without public notice is violative of principles of natural justice. It is submitted that if the public notice would have been issued the petitioners could have shown that in Tehsil Malpura 50 bighas 30 biswas Government land of the category of Banzar, Barani and Parat uncultivated is available which can be utilised for the construction of the school buildings, boarding houses, water-hut and allied purposes to non-petitioner No. 6. It is submitted that by curtailing 3 bighas 4 biswas of land of the tank-bed the storing capacity of the water would be reduced and it would be an irreparable loss to the residents of village Diggi as well as villagers of nearby Dhanies who are using the water of the tank for all purposes including irrigation. The petitioners' case is that the land comprised in khasra Nos. 1371, 1379, 1380, 1381, 1384, 1385, 1386, 1388, 1389, 1390 and 1392 remains submerged in water, while some of the land comprised in khasra Nos. 1384, 1385 and 1386 emerges out of water near about Diwali and is allotted for cultivation under the tank-bed cultivation Rules and the allotment under Rules of Allotment Rules of 1963 is wholly illegal. It is submitted that the allotment is wholly malafide as the same has been dorie in order to appease the persons of Jat community and, therefore, also it should be cancelled. Lastly it is submitted on behalf of the petitioners that illegal divertion of public property for private use by persons of a particular community being in contravention of the provisions of the Rules of 1961 and Allotment Rules of 1963 be immediately stopped and public interest should be saved. Learned counsel for respondent No. 6, Jat Sewa Samiti, Malpura, submitted that the State Government has vast powers to make the allotment of the land of any category under the provisions of Allotment Rules of 1963. His submission is that there is no bar to allot the tank-bed land for the purposes of public utility. The only rider is that the allotment has to be made only after the previous approval of the State Government in Revenue Department for the purpose of allotment of land of any category. It is submitted that proviso to Rule 1 of Allotment Rules of 1963 is very clear on the point wherein the words used by the legislature are, 'if land of any other category is required, the previous approval of the State Government in Revenue Department shall be obtained. ' It is submitted that allotment Rules of 1963 have been enacted with a view to allot the land for public utility purposes and the petitioner's contention is wholly untenable that they have come to the court for public interest. Public interest is better served in case a school is run for the children of the agriculturists and a Dharamshala is constructed for staying of the pilgrims coming to village Diggi for darshan of Shri Kalyanji Maharaj. It is submitted that it is not a case of any of the party that the portion of the land which had been allotted is one which is sub-merged with water and land is re-claimed for the purpose of construction of the building. The area in which this land has been allotted remains high and there are already buildings constructed on three sides of it and, therefore, to say that storing capacity of the water would be decreased in the tank, is a fanciful argument. It is further submitted that there is no relevance of Tank-bed Cultivation Rules of 1961 being applicable to the facts of the present case as the bare nomenclature of these rules suggests that they have been made for the purpose of allotment of the tank-bed land for the purpose of cultivation which has to be done in favour of the landless agriculturists. These are not the rules which have any bearing on allotment of portion of the land for the purpose of utilities as mentioned in allotment rules of 1963. It is then submitted that according to the petitioner's own saying there are as many as 28 Dharamshalas in village Diggi. It is mentioned that these Dharamshalas are constructed by different organisations and communities and it is not essential that one community had constructed only one Dharamshala. For instance there are atleast 3-4 Dharamshalas constructed by Mali Samaj, Kumbawat Samaj, Thikana itself and various other communities and these Dharamshalas are on the banks of Megh Sagar, Vijay Sagar and Shravan Sagar tanks as they are the most suitable places where the pilgrims have the dip in holy water before going to darshans and it is only at such place that there is utility of construction of public utility buildings. It is submitted that it is in the policy of the State to allot lands for the purposes of Schools, Hospitals, Dharamshalas, Cow-sheds etc. and between the year 1987-90 the State of Rajasthan allotment land measuring from 2 bighas to 14 bighas 4 biswas to various organisations in various towns of Rajasthan. It is then submitted that it is wrong assertion of the petitioners that Megh Sagar Dam is used by the pilgrims and the residents of Diggi and, therefore, also there was no harm in allotting the land out of its khasra number. It is submitted that the petitioner's contention is totally wrong that non-petitioner No. 6 has any other Dharamshala constructed on 2 bighas of land and that 1-1/2 bighas of land is lying vacant. This factual position has been categorically denied by respondent No. 6. It is submitted that charge of entering into a conspiracy for allotment of the land is totally false. It was a well meaning public interest for which the allotment of the land was prayed for and the Administrator of the Gram Panchayat and the Tehsildar with all sense of responsibility and looking to all the facts and circumstances and the fact that several hundred persons of the Jat community visited Diggi, recommended the allotment of the land which the State Government has accepted and consent given in pursuance of which the Collector issued the order of allotment. It is then submitted that it is not for the first time that the State Government has given consent for allotment of the tank-bed land for some public utility purposes. The State Government in village Aaktadi also gave 1 bigha 12 biswas of land from Gair Mumkin Talab for construction of Government Primary School and the order of such allotment has been placed on record as Annexure R 6/1. It is submitted that respondent No. 6 had applied for allotment of 5 bighas of land and the recommendation of the Gram Panchayat as well as the Tehsildar was for 5 bighas but the State Govt. has allotted only 3 bighas 4 biswas of land which clearly indicates that mind has been applied after lookig to all the facts and circumstances and the map of the area so that neither the character of the dam is changed nor any loss is caused to the Irrigation Department or in any manner affects the supply of the water from the dam to the various cultivators which is through the Khandi. It is submitted that the petitioners have come with ulterior motives. They have made an united front against the persons of the Jat community, fully knowing that they themselves have Dharamshalas of their community and when the farmers have decided to construct their own they are unnecessarily bringing the hurdels. All the rules have been complied and it is only after complying with the rules that the land has been allotted. The only flow which the petitioners could show is that the character of the land is being changed. But for that it is submitted that the same is permissible under the law and has been done in other cases also. There is no public interest involved and such person should not be permitted to encourage the public interest litigation. It is also submitted on behalf of the respondents that the petition has been filed on 23. 7. 93 when the allotment order has been issued in April, 1993 and the respondents have already started construction of the school building and approximately Rs. : 5,00,000. 00 have already been spent in the construction of the school building, therefore, to stop the construction at this stage if the writ is accepted it will cause irreparable loss to the farmers who have contributed for the construction of the school and the Dharamshala.
(3.) LEARNED counsel for the State has justified the allotment order and has submitted that the same has been done in public interest and it is submitted that Rule 1 of Allotment Rules of 1963 authorises the Collector for allotment of land mentioned therein. It is only that it can be done after the sanction of the State Goverment. It is submitted that allotment authority is a Collector and if Nazool and Abadi land is not available Collector himself can allot the land from unoccupied Government Agriculture land classified as Banzar or uncultivated Barani. It is only in case other than the aforesaid that land is to be allotted on previous approval of the State Government, is the condition precedent, therefore, in any other category even the land of the tank- bed is included. Therefore, the State Government has unfattered powers for allotment of any land. It is only! to see that public interest is not harmed and on the contrary it should be advanced. The State Government did not agree to allot 5 bighas of land as it found that allotment of 5 bighas of land will bring the submerged area also under construction and that would amount to re- claiming of the land and, therefore, allotted only 3 bighas 4 biswas of land which is on a corner where nearby other buildings have also been constructed. He thus supported the case of respondent No. 6. I have given my due consideration to the rival contentions made by the learned counsel for the parties and have perused the entire record placed before me. The short question involved in this case is whether the State Government has right to allot the land from the tank-bed for the purposes of objects mentioned in Allotment Rules of 1963 or the allotment can only be made in accordance with the Tank-bed Allotment Rules, 1961 for the purposes of cultivation? In other words a controversy has to be resolved in the case whether the land covered in tank-bed can exclusively be used for cultivation purposes only and in no circumstances it can be allotted for any of the purposes mentioned in Allotment Rules of 1963. There is no dispute on the facts in this case that khasra No. 1371 is the tank-bed. It can also not be disputed that several cultivators are getting water for irrigation purposes from this tank but the same is through khasra No. 1379 which is a low lying area at the end of the dam which had been created beause of digging of the earth used for the purposes of construction of the dam and that the canals pass through this particular khasra only. I have gone through all the khasra girdavaries and khasra khataonies which have been placed on record by the parties. In all previous record I find that khasra Nos. 1371, 1378, 1373 and 1379 make the complete dam, the area of which is 42 bighas and 26 biswas out of which khasra No. 1371 has been shown as Gair Mumkin Talab measuring 22 bighas 7 biswas, while khasra Nos. 1373 and 1378 are the Pal area which means the walls covering the dam. It appears from the village plan that on one side end is also the West-ware, khasra number of which is not mentioned. However in parcha Khatauni and 5 bighas 16 biswas is Gair Mumkin Khandi. I also gethered it from the record that the total of it has been mentioned as one composite unit, namely, Nadi, Pal. Talab. From the record it is also borne out that khasra No. 1376 which is also on the bank has been shown as a Gair Mumkin Dharamshala on 2 bighas and on khasra No. 1377 is Abadi. Unfortunately entire record shows the entry about allotment of land to respondent No. 6 but in no record it has been shown that the boundaries shall be apertaining to it other khasra numbers to indicate the exact site in the village plan. Even there is no document to show in which particular portion of khasra No. 1371 respondent No. 6 has been put into possession. The original order of the State Government wherein the land has been reduced from 5 bighas to 3 bighas 4 biswas, has also not been placed on record by any of the parties or even by the State Government to indicate as to which portion comprising 1 bigha 15 biswas of land has been cut out from the recommendations of the Gram Panchayat and the Tehsildar. This aspect I will be dealiag with later on when I come to the Commissioner's report called for by this court. At this stage I will only deal with the legal position whether the State Government has power to, sanction the allotment of the tank-bed? So far as Tank-bed Allotment Rules of 1961 are concerned, it may be stated at the outset that the land under these Rules can only be allotted for the purpose of bed cultivation. These Rules have absolutely no bearing in the facts of the present case. The only point which requires consideration in this case is whether Tank-bed can be allotted for the purposes mentioned in Allotment Rules of 1963? ;