- (1.) THESE revisions have been filed against an appellate order of the Divisional Commissioner, Bikaner, dated 4.6.54 whereby the appeal of the applicant was dismissed and the order of the Collector, Ganganagar was upheld.
(2.) THIS case started on a report of patwari Chain Singh of village Malsisar, Tehsil Bhadra, that the applicant had made unauthorised construction on unoccupied Government land which was in the catchment area of the village tank. The Naib Tehsildar recommended that the applicant be charged ten times the site value i.e. Rs. 7/8/-per thousand sq. ft., for this unauthorised occupation. The Tehsildar endorsed this view, but the Assistant Collector, Nohar, disagreed with the recommendation of the Tehsildar and ordered that the construction be removed and the applicant be fined Rs. 50/- for taking unauthorised possession of Government land. The applicant went in first appeal before the Collector, Ganganagar, who dismissed it and upheld the order of the S.D.O. On second appeal by the applicant, the Additional Commissioner, Bikaner, remanded the case under order41,Rule25,C.P.G. for further enquiry on certain points. One of the points was as to what was the effect of this unauthorised construction on the johar of the village. The Tehsildar after making due enquiries on the points referred to him reported with regard to the above point that this unauthorised occupation did not at all affect the johar which was used for drinking purposes as the johar was about 225 yds. distant from the land in question. The learned Commissioner, who decided the appeal, observing that "the applicant's construction should be removed and the land in question should be allowed to remain open to serve as catchment area of the village tank, and all other similar unauthorised constructions on the site should also be removed" rejected the appeal. The applicant has now come in revision before us against this order. We have heard the counsel for the parties and have also examined the record of the case. Looking to the report of the Tehsildar dated 1.3.54 which was endorsed by Collector, Ganganagar, on 8-4 54, it is clear that the unauthorised construction by the applicant does not in way affect the johar which is used for drinking purposes. The observation of the learned Commissioner that since the construction is within 250 Yds. of the area of johar, it must naturally be within the catchment area is not borne out from the record. It depends on the flow of water and not on proximity to a tank whether any area adjacent to it fall within the catchment of the tank or not. Obviously, therefore, the Commissioner did not apply his mind properly to this question. We have also read the rules framed by Shri Mannu Bhai Mehta, Prime Minister, of the former Bikaner State with regard to the safeguarding of Government lands from encroachment in Ganganagar division. Rule 5 of these Rules allows a discretion to the Nazim (S.D.O.) either to remove the unauthorised construction or to charge a penal rate for the occupied land allow it to remain in the possession of the person concerned. This direction must be used judiciously. If it is found that the construction is not of the nature which would interfere with the rights or amenities of other persons it would be reasonable to allow it to remain on payment of a penal rate. If it does interfere seriously with the rights and amenities of other subjects or it is found that the person concerned has taken possession of Government land to defraud the Government in any way, it would perhaps be more justifiable to remove the construction outright. In this case, no resident of the village appears to have come forward to object to the said occupation. The entire case was started on a report of the patwari. On the contrary there is on record a mehzarnama purporting to have been filed form the said of residents of the village in which it has been definitely alleged that the aforesaid construction does not in any way affect their rights or amenities and should be allowed to continue on payment of a reasonable price. It is true mehzarnama is neither attested nor does any one appear to have been examined in order to ascertain that it was signed by the residents of the village. An enquiry, therefore, should have been held on the spot in order to find out whether the residents of the village have any objections to the said construction or not If there is no objection, it would not be justifiable to remove the construction merely on the allegation of the patwari that no previous permission was taken. In the circumstances, we feel that the case has not been enquired into properly. We would, therefore, allow the revision, set aside the orders of the lower courts and remand the case to the Assistant Collector, Nohar with the direction that a enquiry in the light of the observations made above be made and the case be decided afresh according to law.;