CW 1520/98 [1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH S.B. Civil Writ Petition No.1520/98 Babu & Anr. Versus Board of Revenue & Ors. DATE OF ORDER : 24/03/2009 HON'BLE MR. JUSTICE AJAY RASTOGI Mr. Tripurari Sharma, for petitioners Ms. Raj Sharma, Addl. Govt. Counsel, for respondents *** Instant petition has been filed by petitioners assailing proceedings which was initiated against them u/s.91 of Land Revenue Act, 1956 and so also orders dt.28/11/96 [Ann.5], dt.7/2/97 [Ann.6], dt.17/9/97 [Ann.7] & 22/10/97 [Ann.8] whereby courts below while holding the petitioners to be guilty for encroaching the government land, directed to dispossess the petitioners and at the same time, also passed order for their civil imprisonment for three months which was maintained at all the stages. Petitioners' mother Smt. Bhagwan Dei W/o Late Shri Munshi, as alleged, was in possession of Sivai Chak land bearing Khasra No.1710 0.16 Rakba since Samvat 2029. She made a request that her possession be regularized and Nayab Tehsildar, Bharatpur also sent its report Ann.2 dt.16/10/75 CW 1520/98 [2] in regard to her possession over the land in question and proceedings for regularization of her possession over land were pending, present petitioners who are sons of widow in whose favour report was sent by Nayab Tehsildar, Bharatpur Ann.2 were served with a notice u/s.91 of Land Revenue Act, 1956 for their dispossession and so also for appropriate action for encroaching the government land. It is relevant to mention that Old Khasra No.1710 was later on changed with New Khasra No.992 and accordingly, notice u/s.91 was served referring to Khasra No.992. Petitioners submitted their reply to the notice and submitted that they were never in possession of the land in question and their mother has submitted application for regularization claiming to be in possession over the land in question. Affidavit was also filed by their mother in which she also deposed that she is in possession of the disputed land of Khasra No.992 0.16 Aer. However, Nayab Tehsildar, Bharatpur after taking into consideration the material on record recorded a finding that petitioners were in illegal possession of the government land and while passing order for their dispossession, further ordered for their civil imprisonment for three months. Petitioners are only aggrieved vide order CW 1520/98 [3] dt.28/11/96 with respect to order of court below for sending them to civil imprisonment as they throughout submitted that they have never in possession of the land in question. Against the order of Nayab Tehsildar dt.28th November, 1996, petitioners preferred appeal before Additional Collector, Bharatpur and second appeal before the Revenue Appellate Authority - both appeals were dismissed on 7th February, 1997 & 17th September, 1997 and revision which he preferred before Board of Revenue also met the same fate. Counsel for petitioner contends that when they were not in possession of the government land 0.16 Aer of Khasra No.992 [new] and this was submitted by them throughout in reply to notice and at the same time, their mother submitted her own affidavit clearly deposed about her possession in proceedings initiated against them u/s.91 of the Land Revenue Act and still holding them to be guilty in encroaching the government land – as a consequence whereof, inflicting penalty of civil imprisonment is not legally sustainable. Respondents have filed reply to the writ petition and while supporting orders impugned, CW 1520/98 [4] submits that no illegality has been committed by the courts below in holding the petitioners to be guilty in encroaching the government land and if somebody encroaches upon illegally, he should be adequately punished as well which is provided under law and in such circumstances, no error has been committed. I have heard counsel for parties and with their assistance perused the material on record. Report submitted by Nayab Tehsildar Ann.2 dt.16th October, 1975 clearly discloses that petitioners mother Smt. Bhagwan Dei was in possession of the land bearing Khasra No.1710 [old], New Khasra No.992 0.16 Aer which was indisputably government land and who recommended in its report Ann.2 that she being in possession for sufficient long time and taking note of her minor children, may be considered for regularization. Question before this court is not with regard to dispossession of the land, but confines to the impugned action for sending them of civil imprisonment. CW 1520/98 [5] It is true that if somebody encroaches upon government land, notice u/s.91 of Land Revenue Act can be served upon him and requires to take stern action against the encroacher. However, in the instant case, they submitted their reply pointing out that they were never in possession of the disputed government land at any point of time which was duly supported by affidavit of their mother in which she deposed that she is in possession and her case was recommended for regularization. No documentary evidence was placed on record by which it could be inferred that petitioners were in possession of the land in question. Nayab Tehsildar at the first instance proceeded on the premise that statement of Patwari being recorded during the course of proceedings deposed that one point of time petitioners were dispossessed but that could not be considered as basis to infer that they were in possession. In opinion of this court, holding the petitioners to be guilty of encroaching upon the government land and for civil imprisonment, in no manner can be said to be sustainable. CW 1520/98 [6] However, finding recorded by this court will not come in way of the authorities in independent proceedings, if any, initiated on the recommendation made Ann.2 for regularization of the disputed land in question. Consequently, writ petition stands allowed. Orders dt.28/11/96 [Ann.5], dt.7/2/97 [Ann.6], dt.17/9/97 [Ann.7] & 22/10/97 [Ann.8] so far as it relates to sending the petitioners to civil imprisonment to this extent, are hereby quashed and set aside. No costs. [AJAY RASTOGI], J. FRBOHRA1520CW98 24-3.doc