1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.3827/2000. : : Gopal & Ors. Vs. Gordhan & Ors. : : Date of Order 21.4.2009 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr. Devendra Chouhan for the petitioners. Mr. S. N. Kumawat for the respondent (s). Heard learned counsel for the parties. 2. This writ petition has been filed by the petitioners assailing order dated 28.3.2000 passed by S.D.O., Sambher Lake, subsequent order dated 17.4.2000 passed by Additional Collector, Jaipur and the orders dated 25.5.2000 and dated 20.6.2000 by which successive appeals filed by petitioners were dismissed by the Revenue Appellate Authority and Board of Revenue. 3. The respondent No.1 herein dug a well on a public land in order to encroach the land measuring 9 bighas and 10 biswas. The well was dug on the land situated at the boundary of 'Talab' of village. Petitioner made a complaint. 2 Respondent No.1 thereupon submitted an application before the SDO under Rule 12 A of Rajasthan Land Revenue (Allotment of Land for Digging of Well & Installation of Pumping Sets for Irrigation Purposes) Rules, 1979 (for short “the Rules of 1979”). SDO allowed the application and regularized the aforesaid land on the condition that respondent shall not make use of water except for irrigating land of 5 biswa and she shall deposit the annual land revenue and that she shall not take possession of more than 5 biswa and she abide by order issued by Government from time to time. Both Revenue Appellate Court have upheld this order. 4. Shri Devendra Chouhan, learned counsel for the petitioners argued that allotment in question was made in violation of Rule 4 of the Rules of 1979. It was argued that land in question was 'Gair Mumkin Pal' and was used for drinking water in terms of Clause-VI of Section 16 and, therefore, was not available for allotment in terms of Rule 4 of the Rules of 1979. It is argued that SDO while making allotment under Rule 12-A (supra) has not examined Rule 4 and Section 16 of Rajasthan Tenancy Act. Specific objection raised by petitioner has not been decided by any of 3 authorities. The Revenue Appellate Authority also dismissed the appeal preferred by petitioner only on the ground of locus standi and not on merits. It is contended that the Board of Revenue by passing order dated 4.8.2000 has held that appeal filed by petitioner was maintainable and subsequently it could not dismiss the appeal on the ground of locus standi. Authorities could not invoke Rule 12-A when they have initiated the proceedings under Section 91 of Rajasthan Land Revenue Act, 1956 against the respondent No.1. Learned counsel argued that Rule 12-A of the Rules of 1979 is ultra vires of provisions of Section 91 of Land Revenue Act read with Section 97 of Rajasthan Land Revenue Act and there can be no such rules which is ex-contrary to spirit of provisions of parent Act. It is contended that well has been dugged on the Bandh of Talab of village and if it is allowed the water supply to the lack would be reduced and the lack would be rendered useless. 5. Shri S. N. Kumawat, learned counsel for the respondent has opposed the writ petition and submitted that although the well was dugged by petitioner on the boundary of lack, but as per the provisions of Rule 12-A (supra) petitioner applied for regularization of his possession on 4 which it was regularised. This was the policy of Government in newly inserted Rule 12-A vide notification dated 2.7.1981. Rule 12-A provides as under :- “If a person constructs a well or installs a pumping set on unoccupied Government land or pasture land and proceedings against him have been initiated by the Tehsildar under Section 91 of the Act, the Collector or any other officer authorised in this behalf by the State Government, on an application or report of the Tehsildar, after making necessary enquiry, arrives at the finding that the well has been constructed of the pumping set has been installed for genuine irrigation or drinking water purposes and it does not adversely affect the interest of any person having land in the vicinity, the Collector or such authorised officer may allot the land to such person after recovering from him the market price of the land prevailing at the time of receipt of the application or report of the Tehsildar. Upon the issue of such an order, the allottee shall be deemed to be a Gair- Khatedar tenant of the land with the right of ultimate conferment of Khatedari rights after the expiry of a period of 10 years lease money charge for such land annually. The maximum land of five biswa could be allotted per well or pumping set.” 5 Contention of petitioner that when once the objection about his locus standi has been overruled by Board at the subsequent stage, the appeal should have been decided on merits and not dismissed on maintainability cannot be accepted because on perusal of order passed by Board of Revenue especially in para No.7, it is evident that appeal of petitioner was dismissed on merits and not on question of maintainability. The Board of Revenue and Revenue Appellate Authority have both in detail discussed Rule 12-A, which was inserted by Government to regularize possession over public land, which has been used by digging well for irrigation and drinking water purposes. The argument that this rule is ultra view of provisions of Land Revenue Act cannot be accepted because the proceedings initiated against such person under Section 91 of the Act and has provided that Collector may allot the land to such person after recovering from him the market price of the land prevailing at the time of receipt of application or report of Tehsildar and also it is evident from the rider that after making necessary enquiries if it is arrived that well has been constructed and pumping set has been installed for genuine irrigation or drinking water purposes and that maximum area that could be allotted/regularised would be five biswa and that the land 6 shall not be used for irrigation purpose. I am, therefore, not persuaded to uphold the argument that aforesaid rule has got no nexus sought to be achieved and this rule is ultravires of Section 91 or Section 97 of the Land Revenue Act. In the course of arguments, before this Court or before Revenue Appellate Authority the respondent No.1 has have given a solemn undertaking that that he would allow residents of that village to take water from the well for drinking purposes. Learned counsel for the respondent No.1 during the course of arguments categorically stated that although well has been dugged by the respondents, but its water could make available for drinking purposes to all the residents of village. In view of that submission and especially in view of policy of state contained in Rule 12-A of the Rules of 1979 no interference is called for in the impugned order. This writ petition is, therefore, dismissed. (MOHAMMAD RAFIQ)J. A.Arora/- Item No.H/39.