Thursday, June 21, 2018

KUNWARPAL SINGH V. STATE OF UTTARAKHAND AND ORS.


Uttarkhand High Court

WPPIL--65/2011 (December 9, 2014)


1.Since common questions of law and facts are involved in the above titled writ petitions, hence the same are being taken up together and are being adjudicated by this common judgment.

2. The question of a great public importance has been raised in these petitions about the manner in which the ponds/water bodies, common grazing land, playground etc. have been encroached upon by the unscrupulous people. The revenue entries have also been altered without due authority of law. There is a widespread encroachment over the land of Gram Panchayats. The State Government is remiss in discharge of its duties. It is the duty cast upon the State Government to protect/preserve/conserve the water bodies taking into consideration their importance to the environment and ecology of the area. The village ponds provide water to the villagers, cattle and also recharges the underground water.

3. It has also come to the notice of the Court that various Revenue Courts have regularized the encroachment on the public ponds/ water bodies without authority of law. The area of the Gram Panchayat land has also shrunk. The Gram Panchayat land belongs to the entire community.

4. The Lordships of the Supreme Court in the case of Jagpal Singh and others Vs. State of Punjab and others reported in (2011) 11 SSC 396 and in the case of Hinchlal Tiwari Vs. Kamla Devi & others reported in [2001(92) R.D. 689] have categorically held that regularization of the encroachment of Gram Panchayat land is impermissible. The Lordships of Supreme Court have held that para nos.2, 13 18 and 23 have held as under:

 Since time immemorial there have been common lands inhering in the village communities in India, variously called gram sabha land, gram panchayat land, (in many North Indian States), shamlat deh (in Punjab etc.), mandaveli and poramboke land (in South India), Kalam, Maidan, etc., depending on the nature of user. These public utility lands in the villages were for centuries used for the common benefit of the villagers of the village such as ponds for various purposes e.g. for their cattle to drink and bathe, for storing their harvested grain, as grazing ground for the cattle, threshing floor, maidan for playing by children, carnivals, circuses, ramlila, cart stands, water bodies, passages, cremation ground or graveyards, etc. These lands stood vested through local laws in the State, which handed over their management to Gram Sabhas/Gram Panchayats. They were generally treated as inalienable in order that their status as community land be preserved. There were no doubt some exceptions to this rule which permitted the Gram Sabha/Gram Panchayat to lease out some of this land to landless labourers and members of the scheduled castes/tribes, but this was only to be done in exceptional cases.

5. We find no merit in this appeal. The appellants herein were trespassers who illegally encroached on to the Gram Panchayat land by using muscle power/money power and in collusion with the officials and even with the Gram Panchayat. We are of the opinion that such kind of blatant illegalities must not be condoned. Even if the appellants have built houses on the land in question they must be ordered to remove their constructions, and possession of the land in question must be handed back to the Gram Panchayat. Regularizing such illegalities must not be permitted because it is Gram Sabha land which must be kept for the common use of villagers of the village.

6. The present is a case of land recorded as a village pond. This Court in Hinch Lal Tiwari vs. Kamala Devi, AIR 2001 SC 3215 (followed by the Madras High Court in L. Krishnan vs. State of Tamil Nadu, 2005(4) CTC 1 Madras) held that land recorded as a pond must not be allowed to be allotted to anybody for construction of a house or any allied purpose. The Court ordered the respondents to vacate the land they had illegally occupied, after taking away the material of the house. We pass a similar order in this case.

7. Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/Poramboke/Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land.

8. The directions issued by the Honble Supreme Court, in the judgment cited hereinabove, were issued in the year 2011 but till date, no remedial steps have been taken by the respondent-State to salvage the property owned by the Gram Panchayats. The Gram Panchayat land belongs to the entire community and it is to be utilized and managed for the common good of the society.

9. Accordingly, the following mandatory directions are issued to the State Government:- A. The State Government is directed to remove all the encroachments from the village ponds/johars, play grounds and common grazing land within a period of six months from today. B. The State Government is also directed through Secretary Revenue to ensure that all the illegal entries changing the nature of the ponds/ common grazing land/ johar are reversed and the land is restored to its original nature, and if necessary, by carrying out digging up operations. C. The State Government is also directed through the respective SDMs to ensure that all the johars/ponds/water bodies are fenced and protected. D. The State Government through office of Chief Secretary is directed to ensure that henceforth, no johar/ponds/water bodies/ common grazing land is encroached by anyone through the State of Uttarakhand. E. The State Government is also directed to ensure that no sewerage flows into the water bodies and their water quality is maintained throughout the year. The endeavor of the State Government should be to restore the village ponds/water bodies, as they existed in the year 1951 when the U.P. Z.A. & L.R. Act was made applicable. G. The Sub Divisional Magistrates of the respective areas are directed to constitute a Committee comprising of six members including the Pradhan of the Panchayat to identify and locate the ponds/water bodies in their respective jurisdiction.

10. List these matters after six months.

11. The Chief Secretary shall file the compliance report on his personal affidavit within this period. (Lok Pal Singh, J.) (Rajiv Sharma, J.) 13.06.2018 Balwant/ sukhbant.

Sourcehttps://www.casemine.com/judgement/in/5b27f0579eff432f35a3ff2d


























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