Rajasthan HC Orders Removal of Road and Crematorium Built on Natural Drain Land in Dausa, Rejects Public Purpose Defence

A Division Bench at Jaipur directed the State to restore Khasra No. 717/444 in Village Khatwa, recorded as Gair Mumkin Nala, after admitting it had built a road and crematorium on the natural water channel.

The Rajasthan High Court's Jaipur Bench allowed a public interest litigation on 7 May 2026, directing State authorities to remove a gravel road and crematorium structures erected over land admeasuring 2.03 bigha in Village Khatwa, Tehsil Lalsot, District Dausa. The land, bearing Khasra No. 717/444, is recorded in the revenue records as Gair Mumkin Nala, a natural drainage and water flow channel. The Division Bench of Dr. Justice Pushpendra Singh Bhati and Justice Vinit Kumar Mathur held that the State's own admission in its reply left no room for doubt about the land's character, and that public utility cannot justify the destruction of a natural resource the State is constitutionally bound to preserve. Compliance was directed within three months.

The Dispute Before the Court

Petitioner Ramji Lal Saini, a resident of Netawali Dhaani Khatwa in Tehsil Lalsot, filed the PIL seeking a writ of mandamus to compel the respondents, the State of Rajasthan, the District Collector Dausa, the Development Officer of Panchayat Samiti Lalsot, the Tehsildar Lalsot, and the Sarpanch of Gram Panchayat Khatwa, to remove construction from the Gair Mumkin Nala land.

Counsel for the petitioner, Mr. Dharmendra Pareek, confined his submissions to a single point: the land in question is recorded in the revenue entries and Jamabandi as Gair Mumkin Nala, and no construction or utilisation for any purpose other than its recorded nature is legally permissible. He argued that constructing a road and permitting the land to be used for crematorium purposes was contrary to law and violated the constitutional mandate on environmental protection.

The State, represented by Mr. G.S. Gill, Additional Advocate General, along with Ms. Shikha Sharma, Ms. Rashmi Kaushik, and Ms. Divya Rathore appearing for Mr. K.P. Mathur, AAG, contended that the road and crematorium had been developed for public utility purposes and that no interference in extraordinary writ jurisdiction was warranted.

The State's Own Reply Settled the Factual Question

The bench found the State's defence undermined by its own pleadings. Paragraph 1 of the State's reply acknowledged that Khasra No. 717/444, measuring 2 bigha 3 biswa, is recorded as Gair Mumkin Nala in the revenue record, and that as per the report of the Patwari Halka Khatwa, part of the land carries a road and part has crematorium canopies, with the remaining land being used as a kachcha way.

The bench observed that once the nature of the land as a natural water channel stood admitted, “the consequential legal position becomes self-evident.” There was no dispute about the character of the land; the only question was whether the State's justification of public utility could override the legal prohibition on diverting such land.

Why Public Utility Cannot Override a Natural Water Channel

The court held that a Gair Mumkin Nala constitutes a natural drainage and water flow channel forming an integral part of the ecological framework and hydrological system of the area. Such land cannot be diverted, obstructed, or altered for any non-conforming purpose merely because the utilisation is claimed to be for a public purpose.

The bench invoked the doctrine of public trust, which obligates the State to act as a trustee of natural resources and mandates their preservation for the benefit of the general public and future generations. It drew on Articles 48-A and 51-A(g) of the Constitution, which cast a duty on the State and citizens alike to protect and improve the natural environment, and on Article 21, under which the right to a clean and sustainable environment has been recognised as an inseparable facet of the right to life.

The court placed particular weight on Rajasthan's ecological conditions. It observed that preservation of water bodies, natural drains, catchment areas, and traditional water channels assumes even greater significance in a State where water scarcity renders conservation of every natural water resource indispensable. Any obstruction or alteration of a natural water channel, the bench said, has the potential to adversely affect drainage patterns, groundwater recharge, and environmental equilibrium.

The bench rejected the argument that increasing urbanisation, developmental expansion, and demographic pressures could legitimise actions contrary to law and destructive of ecological balance. It held that “administrative convenience or developmental pressures cannot legitimise an action otherwise impermissible in law.”

Prior Judicial Pronouncements Ignored by the State

The bench drew attention to two earlier judgments of the same court that the respondents had failed to act upon. The first was Abdul Rehman v. State of Rajasthan & Ors. (D.B. Civil Writ Petition No. 1536/2003), decided on 2 August 2004, in which the court had emphasised the constitutional obligation of the State and citizens to preserve ecological balance and protect natural resources including water bodies and catchment areas. That judgment had reproduced the constitutional provisions on environmental protection and had noted that the Supreme Court had elevated environmental concerns to the level of a fundamental right under Article 21.

The second was Gulab Kothari v. State of Rajasthan & Ors. (D.B. Civil Writ Petition No. 1554/2004), in which an order dated 12 January 2017 had reiterated the doctrine of public trust and the necessity of protecting natural resources such as rivers, lakes, nalas, and catchment areas. That order had recorded a concession by the Advocate General and Additional Advocate General that natural resources including hills, forests, rivers, and lakes cannot be disturbed while preparing or modifying a Master Development Plan. It had also directed the State to take a drive to remove all encroachments over natural resources and the unauthorised activities operating thereon.

The bench found that despite these categorical pronouncements, the respondents had failed to discharge their statutory and constitutional obligations and had instead sought to justify utilisation of the Gair Mumkin Nala land for purposes alien to its recorded character.

Outcome

The Division Bench allowed the writ petition. By order dated 7 May 2026, the respondents were directed to remove forthwith any road, crematorium structure, encroachment, or any other construction existing over Khasra No. 717/444 (also referenced as 718/444), admeasuring 2.03 bigha, situated at Village Khatwa, Tehsil Lalsot, District Dausa, and to restore the land to its original recorded nature as Gair Mumkin Nala.

The respondents were further directed to ensure that no portion of the said land, or any adjoining land recorded as Gair Mumkin Nala in the revenue records, is utilised for any purpose inconsistent with its recorded character. Compliance was required within three months from the date of the order. All pending applications were disposed of accordingly.