- (1.) THIS application under clause 5 or the Schedule of the Rajasthan Colonization Act, 1954 has been made by Sohan Singh applicant against the order of the Collector, Bundi dated 21-2-1964 whereby in exercise of his power under sec. 22 of the Colonization Act he ordered that the Government land trespassed upon by the Applicant should be re-entered and taken possession of without payment of compensation including the crop, trees and the buildings situated thereon. He nominated Shri H. C. Shara, Sub-Divisional officer, Bundi for executing this order. Aggrieved by this order the applicant has come up before me under clause 5 of the Schedule.
(2.) A preliminary objection raised by the Government Advocate was that the subject matter of the dispute between the Collector and the applicant does not fall withing the scope of clause 5 of the Schedule. In the above clause only disputes between the State and the tenant regarding the property and rights reserved by the State Government or conditions of tenancy can be referred to the Board for final decision. The applicant is not a trespasser on the Government land and he was rightly ordered by the Collector under sec. 22 to be evicted. This Court therefore has no jurisdiction to try this case. In reply to this preliminary objection it was urged by the counsel for the petitioner that the applicant was also Khatedar tenant in the colony area prior to the commencement of the Colonization Act within the meaning of sec. 20 of the above Act. The Schedule attached to the Act would govern his Khatedari rights. His case was essentially a boundary dispute between the State land and his khatedari lands where it is alleged that the petitioner has trespassed upon the Government land by constructing a boundary wall as well as some shops and buildings. Thus there is a dispute with regard to the boundary between the Khatedari land which has not been properly demarcated. This dispute, the counsel pleaded could be referred to the Board within the meaning of Clause 5. I have considered the arguments advanced from both the sides and perused the record. It is an established fact that the petitioner is the purchaser for value of the own Khatedari rights in khasra No. 56, 58, 59, 60 and 62 in village Taleda in District Bundi. These lands are admittedly old Khatedari lands before the commencement of the Colonization Act and as such the provisions of the Colonization Act would not apply to this holding except to the extent of the conditions mentioned in the Schedule. It is also an admitted fact that the dispute between the applicant and the State relate to the encroachment of the State land along the boundary of his own Khatedari land falling in khasra numbers 56, 58, 59, 60 and 62. It is stated that this boundary wall as well as the buildings have been constructed on the border line of the khatedar land which adjoins the Government land. There is a dispute to the extent of the encroachment of the Government land by the applicant. The applicant concedes that he has committed an encroachment on the Government land to a certain extent but not to the extent as pointed out by the Collector in the impugned order. For this encroachment he has been fined Rs. 50/- by the Deputy Director of Colonization vide his order dated 20-1-62 and orders have been issued for either evicting the appellant from the land so encroached or allotting the land so encroached on payment of a price. In view of the facts stated above I am inclined to hold that this is a dispute relating to boundary between the applicant's Khatedari land and the colony land or the Government. The proper boundary pillars should have been erected along the boundary of these lands and the extent of encroachment by the applicant on the Government land determined for each khasra number. This has not been done in this case. For this reason I have no hesitation in holding that the reference for this boundary dispute lies to the Board under clause 5 to the Schedule of the Colonization Act and this Court is competent to go into this matter. On the merits of the case the applicant admits that he has encroached upon the Government land and this is also the case of the State Government, but there is dispute to the extent of encroachment on the Government land. This dispute has not been properly settled between the parties in accordance with the regular procedure prescribed under the Land Revenue Act which apply to the Colonization Act by virtue of the provisions contained in sec. 5 of this Act. A proper survey should have been conducted first and the boundary pillars should have been erected next and the extent of encroachment should have been determined and then the Collector was free to exercise his power under sec. 22 of the Act either to re-enter upon the Government land so trespassed or to regularise this encroachment by transfer of the land on payment of a sale price or in some other manner. This should have been done with regard to this trespass alleged to have been committed by the petitioner both with regard to the boundary wall as well as by constructing of shops and other buildings. The Collector had no jurisdiction under the Colonization Act to re-enter upon that part of the shop or the boundary wall which existed on the Khatedari land of the applicant. However, the Collector could have proceeded separately under the Land Revenue Act against the applicant for conversion of the agricultural land for abadi purposes or other uses without the permission of the State Government, no jurisdiction vests in him to take any action against the applicant with regard to the conversion of the Khatedari land for other purposes under the Colonisation Act. Thus the order of the Collector in dealing with this matter is partly erroneous in law for want of jurisdiction. I, therefore, accept the application of the applicant and set aside the order of the Collector and remand this case back to him for determining the extent of trespass on the Government land by actual demarcation of the boundary between the Government and the Khatedari land and to take further proceedings both in accordance with the Colonization Act and under the Revenue Law as the Collector may deem fit. .;