HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 30
Case :- WRIT - C No. - 24612 of 1996
Petitioner :- Ramadhar & Others
Respondent :- Collector Jaunpur & Others
Petitioner Counsel :- H.S.N. Tripathi
Respondent Counsel :- C.S.C.
Hon'ble Sibghat Ullah Khan,J.
List revised. No one appears either for the petitioner or for private respondents. Learned standing counsel for the respondent nos. 1 to 3 is present.
In normal course in such a situation writ petition is to be dismissed in default on the principles of explanation inserted by C.P.C.(amendment) Act 1976 to order 41 Rule 17 C.P.C. However, in some rare cases this principle has to be ignored in exercise of writ jurisdiction particularly when petitioner is behaving in an extremely unjust manner and public property is involved.
Learned standing counsel has been heard who has also filed counter affidavit annexing therewith copies of relevant khataunis. In this case on 24.11.2010, 18.01.2011, 14.02.2011 and 28.02.2011 following orders were passed.
"Petitioner is making his claim over a pond. Almost all ponds vested in State at the time of zamindari abolition. However, in case petitioner can show that immediately after zamindari abolition his name was entered as seerdar or bhoomidhar over the pond in dispute then his case may be considered.
Accordingly, list for further arguments on 20.12.2010. On the said date copies of revenue records must be filed. Meanwhile no court whether revenue, civil or consolidation shall proceed further with any case in respect of right of the petitioner pertaining to the pond in dispute comprised in plot nos. 1365, 1375 and 1736 total area about 4.25 acres situate in village Sawayan post office Sarpatah District Jaunpur.
Office is directed to supply a copy of this order free of cost to Shri Indrasen, learned standing counsel by tomorrow.
List after three weeks.
Meanwhile, rejoinder affidavit shall be filed.
Two weeks and no further time for filing rejoinder affidavit is granted.
List peremptorily on 28.2.2011 showing the name of Sri A.S. Diwakar also as learned counsel for the respondent.
Even though in view of earlier orders no further time is warranted to be granted to file any rejoinder affidavit, however, Sri H.S.N. Tripathi, learned counsel for the petitioner repeatedly requests for only ten days further time. Prayer is accepted. List peremptorily at the top of the list on 10.03.2011."
Gaon Sabha passed a resolution on 04.06.1996 to allot the pond in dispute to respondents 4,5 and 6 Purushottam, Mohan, Ayodhya Yadav and one Shilajit who is not party in this writ petition. The proposal was approved by Naib Tehsildar on 30.05.1996. Petitioners filed objections before the S.D.O. against the said allotment on 18.05.1996 which were registered as case no.36 Ram Adhar and others Vs. Gaon Sabha. They claimed that the pond belonged to them and they were in possession since before Zamindari Abolition and these ponds were never let out by gaon sabha for fisheries purposes hence the auction in question (dated 4.6.1996) should be cancelled. The right of the gaon sabha to auction the ponds was challenged on the ground that the ponds did not belong to the gaon sabha.
On abolition of Zamindari agricultural lands vested in the State and the state could direct that particular types of such land should vest in the gaon sabha as provided under Section 117 of U.P.Z.A.L.R. Act. The State has vested several types of agricultural land including tanks, ponds, private ferries, water channels, pathways and abadi sites in Gaon Sabhas vide sub section (i)(vi) of Section 117 of the Act. Three question answers have been filed as Annexure 1,2, and 3 to the writ petition and it has been stated in the writ petition that the said question answers proved that objections of the petitioners were pending before consolidation authorities. Consolidation authorities have got no right to gift the gaon sabha properties to private persons in the form of declaring the right of that private person over the said land of gaon sabha.
It has been held in Kunti Vs. Commissioner 2009(107)R.D. 405 and Dinanath Vs. State of U.P. 2009 (108)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:
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 for agricultural or residential/commercial purpose 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. Para 20 of the said authority is quoted below
" In Uttar Pradesh the U.P. Consolidation of Holdings Act, 1954 was widely misused to usurp Gram Sabha lands either with connivance of the Consolidation Authorities, or by forging orders purported to have been passed by Consolidation Officers in the long past so that they may not be compared with the original revenue record showing the land as Gram Sabha land, as these revenue records had been weeded out. Similar may have been the practice in other States. The time has now come to review all these orders by which the common village land has been grabbed by such fraudulent practices."
The case of Kunti (supra) was decided by me and the said case was directed against order rejecting transfer application. However, as question of pond was involved hence I issued direction for vacation of the pond at once. The Supreme Court while approving my judgment through its judgment dated 29.03.2010 fully approved the said approach and observed as follows before quoting extensively the portion of the High Court judgment which was challenged.
"The learned Single Judge could see through the game of Ramroop and like and dismissed the writ petition by recording the following reasons."
Accordingly, the writ petition is absolutely devoid of any merit hence it is dismissed. It is further directed that as petitioners are admittedly in possession and as through interim order dated 02.08.1996 it was directed that "until further orders parties shall maintain status quo." hence since 1996 till 2010 petitioners shall be liable to pay the damages for unauthorised occupation @ 5000/- per acre per year. Petitioners shall be evicted forthwith and ponds in dispute shall at once be let out for fisheries purposes in the light of the judgments of this court reported in Ram Kumar Vs. State,2005(99) RD 823(FB) and Ram Kumar Vs. State, 2009(107) RD 557
The ponds shall be settled through auction after due advertisement in daily Hindi Newspaper Dainik Jagaran or Amar Ujala published from the place nearest from the village in question. Name of the village in which pond is situate number of plot/pond and its area must clearly be mentioned in the advertisement which must appear in the News paper about two weeks before the date fixed for auction. Absolutely, no laxity in compliance of this order will be appreciated by this Court.
Writ petition is accordingly dismissed with the above directions.
Office is directed to supply a copy of this order free of cost to Sri Indresen, learned standing counsel within a week for immediately sending the same to the S.D.O. Sahahganj, District Jaunpur and Collector Jaunpur. Both these authorities shall send compliance report regarding eviction of the petitioners, realisation of dues from them and auction of the ponds for fisheries purposes.
List peremptorily for perusal of compliance report before me on 06.07.2011 at the top of the list.
Order Date: - 10.3.2011