- (1.) THIS revision has been filed against the order of the learned Commissioner, Bikaner dated 22.2.56 and arises under the following circumstances : -
(2.) ONE Kesra filed a Mukhbiri stating therein that the opposite party Bega and Harchand had encroached upon Government land and unlawfully enclosed the land by raising a compound wall. An enquiry was made by the subordinate courts and it was represented to them by the villagers, Lumberdars etc. that this land was used for the seating of village cattle and the opposite party had made unlawful encroachment on this land of public utility. The Naib Tehsildar proposed that the delinquents be fined Rs. 10/- each and the encroachment should be removed at their cost. This proposal was endorsed by the Tehsildar and the Asstt. Collector accepted the proposal and directed that the encroachment should be removed and the amount of fine as proposed by the Tehsildar be recovered. This order of the S.D.O. some how remained pending in the tehsil and the case was resubmitted to the S. D. O. for orders. Again the S.D.O. passed the same order on 15.9.55. Against this order, an appeal was filed before the learned Commissioner, who by his order in revision directed that the land measuring 270 sq. yds. encroached upon should be allowed to remain in possession of the opposite party as Raiyatana and they may be fined Rs. 10/- each for making this unlawful encroachment. It is against this order that the present revision has been filed before us. The contention of the learned counsel for the applicant as well as the Government Advocats is that the Commissioner while conceding that the opposite party has made this unlawful encroachment had no power under any rule to allow them to keep this land without payment of Nazrana. It was also argued that there was no provision of law under which a fine could be imposed. Further in view of sec. 147 of the Bikaner Land Revenue Act the Commissioner should have ordered the removal of the encroachment instead of allowing it to remain in possession of the opposite party. We find a good deal of force in this contention. Sec. 147 of the Bikaner Land Revenue Act lays down that where a land has been reserved for road..............or for any other purpose of public utility or for common use of the villagers, has been encroached upon by any person a Revenue Officer, may on the application of any interested per-son eject the trespasser. There is no dispute that the land in question was used for the seating of the village cattle under the shadow of a huge tree which stands on this land. It is also clear that almost all the residents of the village protested against this encroachment. In such circumstances, the lower courts were absolutely justified in ordering the removal of the encroachment and that the learned Commissioner should not have disagreed without assigning any reason for doing so The only puerile reason given by the learned Commissioner is that as the man has unwittingly encroached upon this land and is making use of it he may be allowed to keep it with him. This is in fact no argument. Even if the learned Commissioner wanted that the land be given to the opposite party according to the Raiyatana rules he should have examined the case in the light of those rules. There is no provision in the Raiyatana Rules as far as we can see that the Commissioner is empowered to condone the encroachment or allot the land free of Nazrana. There is also no provision anywhere either in the Bikaner Land Revenue Act or the Raiyatana Rules to impose a fine on persons who might have encroached upon Government land. The only relevant provision under which a case of this nature can be disposed of was sec. 147 of the Bikaner Land Revenue Act. A similar provision now exists in sec. 9i of the Rajasthan Land Revenue Act which empowers the Revenue Officers to order the removal of encroachment over Government land. It therefore follows that the order given by the learned Commissioner is bad in law inasmuch as he has exceeded bis jurisdiction in not only condoning the encroachment but also imposing a fine on the opposite party. It may be that the opposite party has not filed any revision against the order of fine but as we are seized of the case in revision we cannot overlook this patent defect in the order of the learned Commissioner. The result is that the order of the learned Commissioner is vacated and that given by the S.D.O. on 15.9.55 is confirmed.;