V.S.DAVE, J. - (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 Kalyanraiji 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 PAD YATRIES 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 Grain 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 Shravan Sagar. Petitioner's 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 14 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 Land for Construction of Schools, 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 Section 5(2) agriculture denotes the cultivation of the field and includes horticuture cattle breeding, dairy forming and poultry farming. It is submitted hat in widers 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 records 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 purpose of cultivation and that too under the provisions of Rajasthan Land Revenue (Allotment of Tank bed and lands for cultivation) Rules, 1961 (hereinafter referred to as 'the Tank 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, 13S0, 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 done in order to appease the persons of Jat community and, therefore, also it should be canceled.
(3.) 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.;