JUDGMENT :

Sangeet Lodha, J.

1. This writ petition (PIL) is filed by the petitioner seeking directions to the respondents to remove the encroachment and restore the status of gair mumkin agore land comprising khasra No. 431 measuring 19.18 bighas and khasra No. 433 measuring 19.02 bighas of Village Sanvreej, Tehsil Phalodi, District Jodhpur.

2. Precisely, the case set out by the petitioner is that the lands ad measuring 24 bighas & 18 biswas comprising khasra No. 431 and 24 bighas & 2 biswas comprising khasra No. 433 were recorded in the revenue record as gair mumkin agore. Out of the said land, 5 bighas land in each khasra was divested by the State Government vide order dated 28.6.94 for expansion of abadi. After diversion of the land for abadi purposes as aforesaid, the Sarpanch, Gram Panchayat issued pattas to many persons including his relatives. The legality of the pattas issued was questioned before the revisional authority by one Shri Chunni Lal. The revision petition was allowed by the Additional District Collector (II), Jodhpur vide order dated 31.3.08, however, the persons who were allotted the land continued in possession. Later, Gram Panchayat, Sanvreej adopted a resolution for diversion of 10 bighas land each out of the land comprising khasra No. 431 & 433. The District Collector, Jodhpur vide order dated 9.8.02 allotted 20 bighas land, 10 bighas each out of land comprising khasra No. 431 & 433 to the Sarpanch, Gram Panchat, Sanvreej for the purpose of expansion of abadi. The petitioner served the respondents with the notice for demand of justice for restoration of gair mumkin agore land, but to no avail. Hence, this petition.

3. It is contended on behalf of the petitioner that the land forming part of gair mumkin agore i.e. catchment area of nadi or talab, cannot be divested for any other use and thus, the respondents are under an obligation to restore the land of catchment area and all encroachments made on the land forming part of the catchment area of nadi, deserve to be removed.

4. A reply to the writ petition has been filed on behalf of the State taking the stand that the land measuring 32.15 bighas comprising khasra No. 431 and measuring 27.02 bighas comprising khasra No. 432 was recorded in the revenue record as gair mumkin agore during the settlement. Out of khasra No. 431, land measuring 7.17 bighas and out khasra No. 433, land measuring 3.00 bighas was recorded as sadak (Road) in the name of Public Works Department. Thereafter, the land measuring 5 bighas each from khasra No. 431 & 433 was allotted to Gram Panchayat for expansion of abadi. The said land was mutated in the name of Gram Panchayat vide mutation No. 882. Later, the land measuring 10 bighas each out of aforesaid khasras, was allotted by the District Collector to Gram Panchayat, Sanvreej for expansion of abadi and the land was mutated in favour of Gram Panchayat vide mutation entry No. 1015. It is submitted that 15 bighas each from the aforesaid khasras stand converted for abadi purposes and there are residential houses and shops are existing at the site and only small portion of the land is lying vacant.

5. By way of an additional affidavit, it is brought on record by the petitioner that the pattas issued in favour of eight persons have been cancelled and three persons have constructed shops over the disputed land and many persons are occupying the land unauthorisedly. It is averred that certain persons have constructed their shops over the disputed land whereas the pattas were issued by the Gram Panchayat for residential purpose.

6. Learned counsel appearing for the petitioner contended that the land forming part of gair mumkin agore, the catchment area of nadi or talab cannot be divested for any other use and thus, the pattas of the said land if any, issued do not create any right in favour of allottees and the same deserve to be treated as non est. Relying upon decisions of the Supreme Court in the matter of Jagpal Singh & Ors. vs. State of Punj