HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 30
Case :- WRIT - C No. - 29841 of 2000
Petitioner :- Janki Devi
Respondent :- State Of U.P.And Ors.
Petitioner Counsel :- A.K.Srivastava,Harish Chandra Singh.
Respondent Counsel :- C.S.C.,Km.Seema Agrawal,V.K.Singh
Hon'ble Sibghat Ullah Khan,J.
Heard learned counsel for the petitioner and learned counsel for contesting respondents No.3 to 8.
Petitioner is widow of Kallu. Late Sri Kallu was real brother of respondents No.3 to 5 and of Kesho father of respondents No.6 to 8. After a long time of death of her husband, petitioner filed suit (Case No.7) for declaration and partition under Sections 229-B and 176 of U.P.Z.A. & L.R. Act against respondents No.3 to 8 before S.D.O. Karvi, District Chatrakoot. She claimed right over the share of her husband in the agricultural land in dispute and separation of the same. Property in dispute is situate in village Parsauja District Chitrakoot, Pargana and Tehsil Karvi, District Chitrakoot. Plots number are mentioned at the end of the plaint copy of which is Annexure-I to the writ petition. Total area is shown to be 7.492 hectares. Contesting respondents defendant filed objections before the S.D.O. that the suit was highly belated, hence it should be dismissed on the ground of delay alone without entering into the merits of the case. The S.D.O. decided the matter on 02.02.2000 in favour of petitioner holding that for declaration of right no limitation is provided. In the said order, it is also mentioned that earlier plaintiff petitioner had filed mutation application and appeal against the order passed therein. Against the order dated 02.02.2000 contesting respondents filed Revision No.191 of 1999-2000. Additional Commissioner, Chitrakootdham Mandal Banda allowed the revision on 27.05.2000 and set aside the order of the trial court dated 02.02.2000. The petitioner has challenged the order dated 27.05.2000 through this writ petition.
The Additional Commissioner discussed some authorities regarding pond and held that in the said authorities, it had been held by the High Court that in respect of pond no limitation was prescribed. Thereafter the learned Additional Commissioner observed that in view of the cited authorities revision deserved to be allowed. The Court is unable to clearly understand the relation between the two. The less said about such approach the better. Possibly the Additional Commissioner meant that the land in dispute was pond and as the suit had not been filed by the Gaon Sabha hence limitation applied. In Para-14 of the counter affidavit, it has been stated as follows:
"It is further submitted that the answering respondents has every concerned with the land in dispute which is recorded as Talab .................."
In Para-14 of the rejoinder affidavit, it has not been denied that the land in dispute (or part thereof) is recorded as pond.
I agree with the trial court that for seeking declaration and partition, there is no limitation still if the entire land in dispute or part thereof is pond then parties cannot seek any declaration or usurp that among themselves through partition.
Accordingly, writ petition is allowed. Order passed by the revisional court is set aside and order passed by the S.D.O. is restored.
However, it is directed that in case the land in dispute or part thereof is entered in the revenue records as pond then area mentioned as pond in the revenue records should at once be got vacated and handed over to the State and the Gaon Sabha which are also defendants in the suit by the S.D.O. in the suit in question itself. Supreme Court in Hinch Lal Tiwari v. Kamala Devi AIR 2001 SC 3215 has held that if some plot of land was pond at the time of Zamindari abolition in U.P. then it continues to be pond and the fact that it has become plain land or has been converted into plain land does not rob it of its character of being pond and it can not be allotted to any one and the State authorities must convert the same into the shape of a pond. The said authority has recently been followed by the Supreme Court in Civil Appeal No.1132 of 2011 Jagpal Singh Vs. State of Punjab decided on 28.01.2011. In the latter authority it has also been held that public utility land like pond etc. should be got vacated at once. Relevant sentence in para 20 of the said authority is quoted below
"The time has now come to review all these orders by which the common village land has been grabbed by such fraudulent practices."
It has been held in Kunti Vs. Commissioner 2009(107)R.D. 405 and Dinanath Vs. State of U.P. 2009 (1008)R.D. 321 that Collector of each district should get the public utility land in possession of unauthorised persons vacated even if earlier some consolidation or revenue authority or Court had passed the order in favour of unauthorised occupant. The authority of Dinanath has been approved by the Supreme Court through its judgment dated 29.03.2010 given in S.L.P.(Civil) C.C. 4398 of 2010. After quoting extensively from the judgment of the High Court, the Supreme Court observed as follows:
"In a matter like the present one, the Court can not be a silent spectator and is bound to perform its constitutional duty for ensuring that the public property is not frittered by unscrupulous elements in the power corridors and acts of grabbing public land are properly enquired into and appropriate remedial action taken"
Accordingly, it is directed that the Collector shall look into the records and in case the land in dispute is entered in the record as pond or was entered as such at the time of Zamindari Abolition i.e. 01.07.1952 then whoever is in possession either plaintiff or the contesting defendants should forthwith be evicted and the same must be handed over to the gaon sabha for being maintained/converted into pond and let out for fisheries purposes in accordance with the authorities reported in Ram Kumar Vs. State,2005(99) RD 823(FB) and Ram Kumar Vs. State, 2009(107) RD 557. The parties are directed to appear before the Collector on 07.04.2011. It is clarified that the Collector shall not decide the inter se dispute. Collector shall confine himself only to the aspect as to whether land in dispute is pond/entered as pond or not. Collector shall take decision and action irrespective of pendency of the suit in between the parties.
If there is any land which is not entered as pond, suit in respect thereof must be decided on merit very expeditiously by the S.D.O.
Parties are directed to appear before the S.D.O. on 18.04.2011 and the S.D.O. is directed to decide the matter very expeditiously.
Office is directed to supply a copy of this order free of cost to Sri S.P. Mishra, learned standing counsel for immediately sending the same to Collector Chitrakoot and the S.D.O. concerned within two weeks.
Order Date :- 22.2.2011
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