Land classified as 'Gair Mumkin Nala' cannot be allotted for agricultural purposes under Section 16 of the Rajasthan Tenancy Act, 1955.

Order :

AVNEESH JHINGAN, J.

1. This petition is filed seeking setting aside of order dated 04.05.2018 passed by the Board of Revenue (for short ‘the Board’).

2. The brief facts are that the Tehsildar made a reference on 06.01.2010 in the office of Additional District Collector. It was stated that the land measuring 2 Bigha 15 Biswa situated in Khasra No.15 of Village Gangadwari Tehsil Sikrai was allotted by the Sub-Divisional Officer to the petitioner vide order dated 28.09.1978 inspite of land being a ‘Gair Mumkin Nala’. The land could not have been allotted to the petitioner for cultivation purposes. The reliance was placed upon decision of the Rajasthan High Court, Principal Bench at Jodhpur dated 02.08.2004 in D.B.Civil Writ Petition (PIL) No.1536/2003 (Abdul Rehman Vs. The State of Rajasthan & Ors.) reported in 2004 SCC OnLine Raj. 676 . The reference made to the Board was accepted vide order dated 04.05.2018. It was ordered that allotment of the Gair Mumkin Nala land measuring 2 Bigha 15 Biswa in Khasra No.15 is set aside and the entries in the revenue records be changed accordingly.

3. Learned counsel for the petitioner submits that for last many years there is no water flowing in the nala, the land is being used for cultivation and the allotment of the land should not be cancelled.

4. Section 16 of the Rajasthan Tenancy Act, 1955 (for short ‘the Act’) and Rule 4 of the Rajasthan Land Revenue (Allotment of Land for Agricultural Purposes) Rules, 1970 (for short ‘the Rules’) are reproduced below:-

16. Land in which Khatedari rights shall not accrue — Notwithstanding anything in this Act or in any other law or enactment for the time being in force in any part of the State Khatedari rights shall not accrue in

(i) pasture land;

(ii) land used for casual or occasional cultivation in the bed of river or tank;

(iii) land covered by water and used for the purpose of growing Singhara or other like produce;

(iv) land under shifting or unstable cultivation;

(v) land comprised in gardens owned and maintained by the State Governments;

(vi) land acquired or held for a public purpose or a work of public utility;

(vii) land which, at the commencement of this Act or at any time thereafter, is set apart for military encamping grounds;

(viii) land situated within the limits of cantonment;

(ix) land included within railway or canal boundaries;

(x) land within the boundaries of any Government forest;

(xi) municipal trenching grounds;

(xii) land held or acquired by educational institutions for purposes of instruction in agriculture or for play-ground; and

(xiii) land within the boundaries of a Government agricultural or grass farm;

(xiv) land which has been set apart or is, in the opinion of the Collector, necessary for flow of water thereon in to any reservoir or tanka for drinking water for a village or for surrounding villages:

Provided that the State Government may, by notification in the Official Gazette declare that any land which is under shifting or unstable cultivation, shall cease to be a land for such cultivation and thereupon such land shall be available for the grant of Khatedari rights and the State Government may by a like notification, declare that any land which was not at the commencement of this Act under shifting or unstable cultivation shall at any time after such commencement be under such cultivation from such date as may be specified in the notification and thereupon such land shall be available for such cultivation.

Rule 4. Land not available for allotment under these rules. - The following categories of lands shall not be available for allotment for agricultural purposes under these rules, namely-

(i) Lands mentioned in the section 16 of the Rajasthan Tenancy Act, 1955;

(ii) Lands demarcated as landing grounds for aircrafts;

(iii) Lands reserved for village forests constituted under section 28 of the Rajasthan Forest Act, 1953 (Rajasthan Act 13 of 1953);

(iv) Small Baras or lands reserved for thrashing grounds adjoining, or close to the Abadi