Lokayukta Asks for Plan to Remove Lake Encroachments in Rural Areas

Yathiraju | The New Indian Express | 20 June 2018

Bengaluru : Observing that no department can shun responsibility of protecting lakes by pointing fingers at other departments, Karnataka Lokayukta Justice P Vishwanatha Shetty said that it is the joint responsibility of Departments of Minor Irrigation and Rural Development and Panchayat Raj (RDPR) to preserve the lakes in four taluks of Bengaluru Rural District.

In a recent order, Shetty said that of 611 lakes in Bengaluru Rural District, 537 were encroached upon. The total extent of encroachment is 3,668.4 acres. After removal of some encroachment, still 3,320 acres of land is still under unauthorised occupation by large number of people. The said land is required to be utilised by the state for the welfare of the people and no member of the public can be allowed to continue unauthorised occupation or possession of the government property, he said.

He also stated that it has come to his notice that the total value of 3,320 acres would be around `12,000 to `15,000 crores. For the purpose of digging trenches and installation of boundary stones, at least a sum of `10.39 crore is required. “The tanks are under RDPR and the financial control is with the Minor Irrigation Department. Unless necessary funds of `10.59 crs are released, the concerned authorities who are entrusted with the responsibility of removing encroachment will not be able to show substantial progress in the matter of protecting lakes,” he said.

Justice Shetty also explained that the development of tanks/lakes would improve the ground level water and help the rural populace. “Therefore, it is the duty of the RDPR and Minor Irrigation Department, without any further delay, to take effective steps for removal of the unauthorised encroachers from the government property. However, that cannot be done without necessary financial support extended by the concerned department of the state to meet the expenditure,” he said.

Source : http://www.newindianexpress.com/cities/bengaluru/2018/jun/20/lokayukta-asks-for-plan-to-remove-lake-encroachments-in-rural-areas-1830701.html

BHASKAR S/O BHAGWANT DIKKAR AND ORS. V. STATE OF MAHARASHTRA

Bombay High Court 

Criminal Application [APL] No. 516 of 2015 (14 Aug, 2015)

A.B Chaudhari, J.:— Rule. Rule is made returnable forthwith. Learned APP Mr. Nayak waives service for respondent sole. Heard learned counsel for the rival parties. By consent of rival parties, this Criminal Application is taken up for final hearing and disposed of by this Judgment and Order.

2. Following is the prayer in Prayer Clause [I] of the application for quashing FIR No. 57/2015 registered with Dahihanda Police Station, Tq. Akot, Distt. Akola, for offence under section 447 read with section 34 of indian penal Code:-

“[I] Allow the instant application and thereby quash the first information report vide FIR No. 57/2015 [Annex.5], registered with the respondent, Police Station, Dahihanda, Tah. Akot, Distt. Akola, for offence punishable under Section 447 & 34 of the Indian Penal Code.”

3. The crux of the matter and the larger question that arises for consideration is whether Gayran lands can be cultivated and used illegally and then regularized for any other purpose than for what it is earmarked, namely for grazing?

4. The First Information Report dated 5th July, 2015 filed by the Secretary, Gram Panchayat, Devri, Tq. Akot, Distt. Akola, and order made by the Sub-Divisional Officer on 7 July, 2015 also show that the applicants encroached on the Gayran land. The allegation in the FIR is that green pastures, grass etc., grown on the Gayran land, in question, were removed by the applicants, insecticide was sprayed which was obviously dangerous for animals and a tractor was used for ploughing the land in question. That is why the FIR under section 447 of indian penal code was registered.

5. Learned counsel for the applicants relied on the Govt. Resolution dated 28 November, 1991 and submitted that the said Resolution clearly provides for regularization of encroachments on Gayran lands. He submitted that the applicants have been in possession of these lands from the year 1989 and, therefore, the applicants are entitled for regularization of those encroachments. On the last date, learned counsel for the applicants was asked to find out the view of the Apex Court in relation to Gayran lands, since the Govt. Resolution of 1991 is deemed to have been superseded by the extant policy.

6. Learned counsel for the applicants in fairness has produced before us the Govt. Resolution dated 12 July, 2011. The counsel submitted that para 7 of the said Govt. Resolution is what the Apex Court held in the case of Jagpal Singh v. State of Punjab[AIR 2011 SC 1123]. However, he submitted that para 7[4] of the said Govt. Resolution permitted such regularization of encroachments. He also invited our attention to the order made by the Bombay High Court on 28 March, 2014 in Public Interest Litigation No. 204 of 2010 and submitted that with reference to earlier order made by the same Court on 16 December, 2010, the Principal Seat proceeded to dispose of the petition by directing regularization of the Gayran lands.

7. We have heard learned counsel for the rival parties at length.

8. It is true that the Govt. Resolution dated 28 November, 1991 did indicate regularization of encroachments on Gayran lands. That was also referred in the Circular dated 23rd September, 1999, as there is, again with reference to the Govt. Resolution dated 28 November, 1991. It is also true that the Judgment and order dated 28 March, 2014 made in Public Interest Litigation No. 204 of 2010 referred to earlier order dated 16 December, 2010 and ultimately, directions were issued for regularization. We, however, find that the earlier order dated 16 December, 2010 in Public Interest Litigation No. 204 of 2010 is obviously before the delivery of the Judgment of the Supreme Court in the case of Jagpal Singh v. State of Punjab [cited supra], based on which the Govt. issued the last Resolution dated 12 July, 2011. It is, thus, clear to us that the said order dated 28 March, 2014 does not refer to the Supreme Court judgment aforesaid in Jagpal Singh's case, so also the Resolution of the Govt., dated 12 July, 2011, a copy of which is taken on record and marked ‘X’ for identification. We think the Supreme Court Judgment and the Govt. Resolution based on that Judgment as aforesaid must be held to be holding the field and any order in ignorance thereof would not be valid. We are, therefore, bound by the Judgment of the Supreme Court and the consequent Govt. Resolution dated 12 July, 2011. We, therefore, do not subscribe to the submission made by the learned counsel for the applicants that the order dated 28 March, 2014 should be followed. We then find that in the districts of Akola and Buldana, large number of Gayran lands meant for grazing of animals have been encroached and are now being sought to be regularized, as, in the instant case, the application was made to the Collector to act for making regularization on the basis of the old Govt. Resolution of 1991. We think, in the light of the last Supreme Court Judgment in the case of Jagpal Singh and the Govt. Resolution based thereon, the regularization of such encroached Gayran lands cannot be allowed and on the contrary the encroachments are liable to be removed, as directed in the said Govt. Resolution.

9. One must realize the pitiable conditions of the animal husbandry in respect of which the lands meant for grazing etc., have also been encroached by human beings and the animal husbandry is being deprived of their basic food only because of the unending greed of human being. This is a pathetic state of affairs and we think that the State Govt. at least now must wake up to follow the said Supreme Court Judgment in letter and spirit and the Govt. Resolution issued by the Govt. itself on 12 July, 2011, in particular Clause 9 (1) (2) thereof by drawing out the programme as suggested by the Supreme Court for driving out the human beings who have encroached on the lands meant for grazing of the animals rather than the animals being driven out by human beings. We are really taken aback that despite steep decline in the animal husbandry in proportion to human population in the country, the Govt., issued a Resolution dated 28 November, 1991 to regularize encroachments on Gayran lands.

10. We are fortified in our above view on this subject by the decision of Karnataka High Court in the case of Holeyappa v. State of Karnataka represented by its Secretary [ILR 2005 KARNATAKA 5437]. The observations made by the Karnataka High Court in the said Judgment, the relevant portion of which is quoted below, are apt in the present scenario:-

“…………………………………………………………………………. ………..No writ lies for issuing directions to the Government or the officials of the Government to compel them to act contrary to the statutory provisions. Respondents are directed to ensure that if any standing crop was there, it is harvested and the proceeds given to such persons who had raised the crop and to ensure that hence forth the land is retained as a gomal land, that no unauthorised encroachments are allowed on the land and land is preserved for the common utility of the community of the village. It is hereby directed that the respondents are bound to maintain the land as gomal land. #Over a period of time, no doubt the number of cattle might have got reduced but villagers still remain agricultural based and farmers continue to depend on cattle. Areas available for grazing of cattle, greenery, have got reduced over all on account of vast extents of lands becoming urbanised and rapid urbanization has not spared villages either. Non agricultural activities have proliferated and the demand for land has increased day by day. Vast extents of land which has been earmarked for such community purposes like gomal land have become the prime target of the greedy. Local politicians eye on it for their personal gains, set up people to grab such lands; applications are made by syndicates in benami and what not. Available lands are grabbed by the powerful and greedy persons and the like at the cost of community even when there is absolute need for maintaining such lands as gomal lands and to ensure that they sub-serve the common interest of the community. Without any application of mind or thought and at the behest of greedy political bosses, bureaucrats threw to winds the relevant statutory provisions, subvert the provisions and virtually sell away Government lands in the guise of granting of lands. To further compound the situation such persons even seek aid of the Court praying for issue of directions to the respondents to legitimise their illegal activities and directions and mandamus are issued by this Court. More often than not such directions come in handy for conniving and fraud intent officials to put a seal of legitimacy for their arbitrary and illegal actions. …..”

11. We then find that in so far as the offence registered against the applicants is concerned, the facts disclosed in the FIR and the order made by the Sub-Divisional Magistrate show that there is a prima facie case against the applicants, as they had allegedly ploughed the Gayran land, cleared the green grass meant for animal grazing and not only that, they finally spread the insecticide over the grass lands. The applicants themselves say that they have encroached on the Gayran lands and, therefore, we have no doubt in our mind that an offence under section 447 read with section 34 is clearly made out. That being so, we make the following order:-

[a] Criminal Application No. 516 of 2015 is dismissed summarily.

[b] State Govt. is directed to take note of the Govt. Resolution No. dated 12 July, 2011 and the Supreme Court Judgment, on which it is based, and to implement the Supreme Court Judgment and the Resolution at the earliest.

[c] State Govt. shall direct all the Collectors in the State not to regularize any encroachments on Gayran lands and to recall, if any, made as per Clause 9(1)(2) of the said Govt. Resolution No. dated 12 July, 2011, and to take possession of such Gayran lands for grazing of animals.

Source : https://www.casemine.com/judgement/in/56ea7902607dba369a6f01a5

Allahabad High Court in Om Prakash Verma vs. State of UP [28.05.2015]

Allahabad High Court (28 May, 2014)

D.K. Upadhyaya, J.

The question of law and facts in all the writ petitions of this bunch being the same, we propose to decide all the writ petitions by the following common judgement and order.

2. The issue engaging attention of this Court in all these matters relate to unauthorized/illegal occupation of gaon sabha land and eviction therefrom. It has been noticed time and again by this Court and even by the authorities of the State Government that the land vested with the management of gaon sabha is often encroached upon by the individuals who use the same in their personal interest and for their personal benefits. The issue relating to such illegal occupation has, thus, engaged attention even of the Hon'ble Apex Court. Way back on 25th July, 2001 delivering the judgement in a case relating to encroachment of ponds, Hon'ble Apex Court in the case of Hinch Lal Tiwari vs Kamla Devi and others, reported in (2001) 6 SCC 496 has noticed that the material resources of the community like forests, tanks, ponds, hillocks and mountain etc. are nature's bounty and they maintain delicate ecological balance, hence they need to be protected for a proper and healthy environment to enable people to enjoy a quality life which is the essence of the guaranteed right under article 21 of the constitution of india. The Hon'ble Apex Court, thus, observed in the said judgement that appropriate vigil is the best protection against attempts to seek allotment in non-abadi sites. Underlining the importance of maintaining ponds, the Hon'ble Apex Court further observed that restoration of ponds, its development and maintenance as a recreational spot will be in the best interest of the villagers, which will help in maintaining ecological balance and protecting the environment. The Hon'ble Apex Court further observed that such measures must begin at the grass-root level.

3. Yet in another judgement in the case of Jagpal Singh and others vs State of Punjab and others, reported in AIR 2011 SC 1123, the Hon'ble Apex Court directed all the State Governments in the country to prepare schemes for eviction of illegal/unauthorized occupants of gaon sabha land meant for the common use of the villagers. The Hon'ble Apex Court further directed that for the aforesaid purposes, the Chief Secretaries of all the State Governments will do the needful, taking the help of other senior officers of the State Governments and further that the said scheme should provide for the speedy eviction of such illegal occupants, after giving the person concerned a show cause notice and a brief hearing.

4. In compliance of the aforesaid judgements of Hon'ble Apex Court in the cases of Jagpal Singh and others (supra) and Hinch Lal Tiwari and others (supra), the State Government issued Government Order on 23.03.2011 issuing directions to all the Divisional Commissioners, all the District Magistrates and Commissioner and Secretary, Board of Revenue, U.P. Lucknow to the effect that the provisions contained in section 122-b of u.p.z.a & l.r act provides adequate provision for the protection of such properties/land vested in gaon sabha or in a local authority and that appropriate proceedings be initiated to take action under section 122-b (1) of the said Act on a report submitted by the gaon sabha or by the local authority concerned. The said Government Order dated 23.03.2011 further provides that appropriate authority is empowered to initiate the proceedings for eviction under Section 122-B (2) of the Act by taking suo-motu cognizance of the matters. The Government Order further issued various directions for removal of the encroachment from the chak-roads, drains or from other public utility land in case any complaint in that regard is received. The Government Order further directs the authorities concerned to dispose of such matters or such complaints relating to unauthorized occupation within a month and thereafter to take help of the police administration to remove the illegal encroachment.

5. The Government Order dated 23.03.2011 further referring to various Government Orders issued in respect of the procedure to be adopted and action to be taken for eviction of unauthorized occupants from the public utility land, has issued directions to remove the illegal occupation from the gaon sabha land and from the ponds etc. by identifying the illegal occupations which have taken place from 1st January, 2011. The State Government has directed the authorities that after identifying the illegal encroachments, the eviction proceedings be concluded expeditiously and report be submitted of such action taken to the District Level Task Force constituted under the Chairmanship of District Magistrate. The District Magistrate has been required to submit his report to the Commissioner and Secretary of the Board of Revenue.

6. In Writ Petition No. 6472 (MB) of 2012, an order was passed by this Court on 07.08.2012 taking note of the judgments in the cases of Jagpal Singh and others (supra) and Hinch Lal Tiwari and others (supra), directing the Chief Secretary, Government of Uttar Pradesh to constitute a committee consisting of a Senior Bureaucrat, a Senior Police Officer and Legal Remembrancer or his nominee to publicize the letter/order dated 16.01.2009 issued by the Commissioner and Secretary, Board of Revenue to all the District Collectors. This Court by the said order further directed that the letter/order dated 16.01.2009 shall be publicized by all means on regular basis for two months in order to invite complaints from the members of all Gaon Sabhas throughout State of Uttar Pradesh and upon receipt of such complaints, immediate steps shall be taken to get such land freed from encroachment and illegal occupation.

7. In compliance of the order dated 07.08.2012, passed by this Court, a Government Order was issued on 10.09.2012 directing all the Divisional Commissioners and District Magistrates of State of Uttar Pradesh to publicize the constitution of the committee which was constituted in compliance of the order dated 07.08.2012 by the State Government, vide Office Memorandum dated 06.09.2012. The said committee comprises of Principal Secretary, Revenue as its Chairman, Commissioner and Secretary, Board of Revenue, U.P., Lucknow, a member to be nominated by the Director General of Police not below the rank of Inspector General of Police and a member to be nominated by the Legal Remembrancer not below the rank of Special Secretary and Additional Legal Rememberancer as its members.

8. In compliance of the order dated 07.08.2012 and the orders passed by the Hon'ble Apex Court in the cases of Jagpal Singh and others (supra) and Hinch Lal Tiwari and others (supra), a Divisional Level Committee has also been constituted by the State Government by means of Office Memorandum dated 21.09.2012. The said committee comprises of Divisional Commissioner as its Chairman and concerned District Magistrate, concerned Deputy Inspector General of Police/Senior Superintendent of Police, Additional Commissioner (Administration) and Deputy Director (Information) as its members. The State Government also constituted District Level Committees in all the districts by means of the Office Memorandum dated 21.09.2012 under the Chairmanship of the concerned District Magistrate. The said committee comprises of the District Magistrate, Senior Superintendent of Police/Superintendent of Police, Additional District Magistrate (Administration)/ Additional District Magistrate (Finance and Revenue), Sub-Divisional Officers, Deputy Superintendent of Police and District Information Officer.

9. It appears that thereafter an attempt by the State Government was made to publicize the constitution of the Committee. In compliance of another order dated 05.03.2013 passed in Writ Petition No. 6472 (M/B) of 2012, a Committee was constituted by the State Government in the department of urban development for taking action for removal of illegal occupation of tanks, qabristans etc. lying within the limits of various urban local bodies. The said committee constituted by means of Office Memorandum dated 15.05.2013 comprises of the concerned District Magistrate as its Chairman, Nagar Ayukta, concerned Executive Officers of the Nagar Palika Parishad and Nagar Panchayat, concerned Additional District Magistrate (Administration/City), concerned Sub-Divisional Magistrate, Senior Superintendent of Police/Superintendent of Police and District Information Officer as its members. The Chief Secretary of the State Government issued another order on 15.05.2013 directing the authorities concerned to take action for removal of illegal occupation from the land of talabs, grazing grounds and qabristans.

10. The direction issued by this Court in Writ Petition No. 6472 (M/B) of 2012 for constitution of the Committees and also for ensuring the action for eviction of unauthorized occupants are to be acted upon by the State Government in accordance with law which holds fields.

11. In compliance of judgement of Hon'ble Apex Court in the cases of Jagpal Singh and others (supra) and Hinch Lal Tiwari and others (supra), the State Government had issued a detailed order on 23.03.2011 directing all the authorities concerned to take appropriate steps for removal of illegal encroachment from various public utility land, both lying in the villages as well as within the municipal limits of the local bodies concerned. The said Government Order makes a mention of the provision contained in section 122-b of u.p.z.a.& l.r. act.

12. Having heard the learned counsels appearing for the petitioners and learned counsel appearing for the State, we are of the opinion that section 122-b of u.p.z.a. & L.R Act read with certain provisions in the Rules framed under the said Act contains a complete statutory scheme empowering the State authorities to take appropriate steps for eviction of unauthorized occupants from the public utility land belonging to the gaon sabhas or the local bodies. section 122-b (1) of u.p.z.a.& l.r. act provides that it is the duty of the Land Management Committee or local authority concerned to inform the Assistant Collector concerned of any damage/misappropriation of any property vested in a gaon sabha or a local authority. The Land Management Committee or local authority, as the case may be, has been entrusted with the duty to furnish information to the Assistant Collector even in case where any gaon sabha/local authority is entitled to take or retain possession of any land under the provisions of U.P.Z.A & L.R.Act.

13. Sub-section 2 of Section 122-B empowers the Assistant Collector to issue notice to the person concerned if he satisfied that any property referred to in sub-section (1) has been damaged or misappropriated or is in illegal occupation of any person. The said notice is required to be issued by the Assistant Collector on information received under sub-section (1) or otherwise.

section 122-b (1) and (2) are being quoted below:-

"122-B. Powers of the Land Management Committee and the Collector-(1) Where any property vested under the provisions of this Acrt in a Gaon Sabha or a local authority is damaged or misappropriated or where any Gaon Sabha or a local authority is entitled to take or retain possession of any land under the provisions of this Act, the Land Management Committee or local authority, as the case may be, shall inform the Assistant Collector concerned in the manner prescribed.

(2) Where from the information received under sub-section (1) or otherwise, the Assistant Collector is satisfied that any property referred to in sub-section (1) has been damaged or misappropirated or any person in occupation of any land referred to in that sub-section, in contravention of the provisions of this Act, he shall issue notice to the person concerned to show cause why compensation for damage, misappropriation or wrongful occupation as mentioned in such notice be not recovered from him or, as the case may be, why he should not be evicted from such land."

14. We may emphasize that the scheme contained in section 122-b (1) and (2) not only empowers the Assistant Collector to act upon the information received from the Land Management Committee or from the local authority concerned but it empowers the Assistant Collector to act on the information received otherwise as well. The occurrence of word 'otherwise' in sub-section (2) of section 122-b widens the source of information on which the Assistant Collector can act and take appropriate proceedings for eviction of unauthorized/illegal occupants. The initiation of proceedings by the Assistant Collector is not confined only on the information received from the Land Management committee or local authority concerned but the Assistant Collector can act and initiate proceedings on an information received by him 'otherwise' as well. The word 'otherwise' occurring in sub-section (2) of section 122-b of the Act entitles even a third person i.e. a person other than the land management committee or a local authority to furnish information about unauthorized occupation of the gaon sabha land to the Assistant Collector, who on being satisfied that property has been damaged/misappropriated or is being illegally occupied, is duty bound to issue notice to such person.

15. It is common experience that for seeking remedy in respect of illegal occupation of gaon sabaha land and other public utility land the person concerned usually rushes to this Court by way of filing writ petitions without taking recourse to the remedy available undersub-section (2) of section 122-b of the Act.

16. As observed above, the Assistant Collector can proceed to initiate the proceedings for removal of illegal occupation of gaon sabha land or the land belonging to a local authority not only on the report to the said effect being submitted to him by the land management committee or local authority alone but even on application made or information given to him 'otherwise', that is to say that said proceeding has to be initiated by the Assistant Collector on an application made by a person other than the land management committee or the local authority also. In our considered opinion, sub-section (2) of section 122-b enables and entitles the third person other than the land management committee or local authority, to initiate proceeding for eviction from unauthorized occupation of gaon sabha land by moving an application for furnishing information undersub-section (2) of section 122-b of the Act.

17. Sub-section (3) of Section 122-B of the Act states that if the cause shown on issuance of show cause notice, time for which will not exceed 30 days, is not found sufficient or the person fails to show cause, the Assistant Collector will direct such a person to be evicted from the land and for the said purpose he may use or cause to be used such force as may be necessary and further that Assistant Collector may direct that the amount of compensation for damage, misappropriation or wrongful occupation be recovered from such person as arrears of land revenue. Thus, sub-sections (1) (2) and (3) of Section 122-B of the Act not only contain appropriate and adequate provisions and mechanism for ensuring eviction of illegal occupation from gaon sabha land but also empower the Assistant Collector to use force for such eviction. It also empowers the Assistant Collector to recover the amount of compensation for damage or wrongful occupation or misappropriation as arrears of land revenue.

18. Apart from the provisions contained in section 122-b (1) (2) and (3), rule 115-cframed under U.P.Z.A & L.R.Act cast duty on the land management committee to preserve or protect the properties vested in gaon sabha from damage, misappropriation and wrongful occupation. sub-rule (2) of rule 115-c further mandates that Chairman or any member or the Secretary of the land management committee shall report all cases of damage to or misappropriation of wrongful occupation of gaon sabha property to the Collector praying for recovery of compensation for damage or misappropriation of the property or illegal possession of the land together with damages for wrongful occupation thereof. sub-rule (3) of rule 115-c also directs as a duty to the Lekhpal to report to the Collector through Tehsildar of all cases of wrongful occupation of the gaon sabha properties as soon as the same comes to his notice and in any case after conclusion of Kharif and Rabi Partal every year. The Tehsildar, in sub-rule (4) of rule 115-c has also been cast with the duty to satisfy himself in the month of May every year that each Lekhpal has submitted all such reports.

19. Rule 115-C of U.P.Z.A. & L.R Rules, 1952 reads as under:-

"115-C (1) It shall be the duty of the Land Management Committee to preserve or protect from damage, misappropriation and wrongful occupation, all properties vested in it under Section 117, including vacant land and land over which it is entitled to take possession under the Act and to manage and maintain all such property and land in its possession.

(2) The Chairman or any Member or the Secretary of the Land Management Committee shall report all cases of damage to; or misappropriation of wrongful occupation of the property referred to in sub-rule (1) to the Collector praying for recovery of compensations for damage to, or misappropriation of the property or possession of the land together with damages for wrongful occupation thereof.

(3) It shall be the duty of the Lekhpal to report to the Collector through the Tahsildar all cases of wrongful occupation of damages to and misappropriation of the property vested in the Gaon Sabha as soon as they come to his notice and in any case after the conclusion of Kharif and Rabi Partal every year.

(4) The Tahsildar shall satisfy himsel in the month of May every year that each Lekhpal has submitted all such reports.

(5) The provisions of sub-rules (1) to (3) shall mutatis mutandis apply to a local authority in respect of the properties vested in it, including vacant land and land over which it is entitled to take possession, under the Act:

Provided that the duty in respect of sub-rule (3) above shall be discharged by such official of the local authority as may be decided upon by the local authority concerned."

The provision of rule 115-d of U.P.Z.A. & L.R Rules, 1952 is also worth noticing, which runs as under:-

"115-D (1) Where the Land Management Committee or the local authority, as the case may be, failes to take action in accordance with section 122-B, the Collector shall-

(a) on an application of the Chairman, Member of Secretary of the Committee; or

(b) on a report made by the Lekhpal under sub- rule (3) of rule 115-c; or

(c) on the report of the local authority concerned or its official referred to in the proviso tosub-rule (5) of rule 115-c; or

(d) on facts otherwise coming to his notice;

call upon the person concerned through notice in Z.A. Form 49-A to refrain for causing damage or appropriation, to repair the damages, to make good the loss or remove wrongful occupation and to pay damages or to do or refrain from doing any other thing as the exigencies of the situation may demand or to show cause against it in such time not exceeding fifteen days as may be specified in the notice.

(2) Before issuing notice under sub-rule (1), the Collector may make such inquiry as he deems proper and may obtain information on the following points-

(a) full description of damage or misappropriation caused or the wrongful occupation made with details of village, mohalla or ward, plot number, area, boundary, property damaged or misappropriated and market-value thereor;

(b) full address along with father's name of the person responsible for the damage, misappropriation or wrongful occupation;

(c) period of wrongful occupation, damage or miappropriation, class of soil of the plot numbers involved nad hereditary rates applicable to them; and

(d) value of the property damaged or misapprpriation calculated at the prevailing market rate in the locality."

20. Thus, in case of failure by the land management committee or local authority to take action in accordance with Section 112-B, the Collector is duty bound to call upon the person concerned by issuing notice to refrain for causing damage or misappropriation, or to repair the damage, or to make good the loss or remove wrongful occupation and to pay damages in case of illegal occupation. The Collector has been empowered to act under Rule 115-D on an application by the Chairman and Member of Secretary of the Land Management Committee or on a report made by the Lekhpal under sub-rule (3) of rule 115-c, or on the report of local authority concerned or its official or on facts otherwise coming to his notice. Thus, the provision contained in Rule 115-D (d) is wide enough to permit any person to move application to the Collector for removal of unauthorized occupation from the gaon sabha land.

21. On a combined reading of section 122-b, rule 115-c and rule 115-d, we have no hesitation to hold that U.P.Z.A & L.R. Act and Rules contain an adequate and appropriate procedure and statutory mechanism to take action not only to evict the illegal occupants from gaon sabha land but also to refrain any person from misappropriation and wrongful occupation of all gaon sabha lands.

22. Even when the State Legislature has purposely enabled the district authorities by empowering them statutorily to take appropriate action for removal of wrongful occupation and refraining the persons from wrongful occupation of gaon sabha land, in action on the part of the district revenue authorities appears to be compelling aggrieved persons to prefer writ petitions under article 226 of the constitution of india before this Court. This makes it clear that district authorities are not acting in accordance with the aforesaid quoted provisions which is resulting in ever increasing reported cases of unlawful occupation of gaon sabha land. Though, in compliance of the orders passed in various cases by this Court and also by the Hon'ble Apex Court in the cases of Jagpal Singh and others (supra) and Hinch Lal Tiwari and others (supra), State Government has issued various orders evolving further mechanism over and above the provisions contained in U.P.Z.A.& L.R. Act and Rules framed thereunder for eviction of unauthorized/illegal occupation from gaon sabha land, we are not hesitant to observe that the mechanism provided in the Government Orders referred to hereinabove and in the Act and the Rules are not being followed and adhered to. The statutory duty cast on various revenue authorities of the district needs to be performed in all seriousness to enable the residents of the village concerned to enjoy the public utility land such as ponds, grazing grounds, chak roads, qabristans and khalians etc.

23. We have also come across in various cases, the fact that even where after conclusion of the proceedings under section 122-b of u.p.z.a & L.R. Act, the orders for eviction and recovery of compensation for damages or misappropriation of gaon sabha land have been passed by the authorities concerned, the said orders are lying unattended and the same are not being executed. We cannot appreciate such state of affairs.

24. In view of the discussions made and reasons given above, the instant bunch of writ petitions is disposed of in the following terms:-

1. The District Collectors and other revenue authorities of the district shall ensure that the statutory duty cast on the Land Management Committee and the local authority undersection 122-b (1) of u.p.z.a. & l.r. act and rule 115-c (1) and (2) of the U.P.Z.A & L.R. Rules is attended to in all seriousness.

2. The District Collectors shall ensure that Lekhpal of the area concerned attends his duty cast on him under sub-rule (3) of rule 115-c of u.p.z.a & L.R. Rules, inasmuch as, the Lekhpal will report to the Collector through Tehsildar all cases of wrongful occupation of damage to; or misappropriation of the wrongful occupation of the gaon sabha property as soon as they come to his notice and in any case after the conclusion of Kharif and Rabi Partal every year.

3. The District Collectors shall also ensure that Tehsildar of the area concerned shall satisfy himself in the month of May every year that each Lekhpal has submitted reports as envisaged under sub-rule (3) of rule 115-c of u.p.z.a & L.R. Rules.

4. The District Collectors are also directed to take action in accordance with theprovision of rule 115-d in case of failure on the part of Land Management Committee or the local authority, as the case may be.

5. The Assistant Collector, within whose jurisdiction any illegal occupation or damage or misappropriation of gaon sabha land is reported, shall immediately institute the proceedings and conclude the same in accordance with law. The Assistant Collector (who in accordance with para 315 of Revenue Manual is the Tehsildar of the area concerned) shall not only institute the proceedings on information received/application made undersection 122-b (1) of u.p.z.a & L.R. Act by Land Management Committee or the local authority concerned but will also act on an application moved otherwise by any person alleging therein illegal occupation on and damage caused to gaon sabha land and will conclude the same in accordance with law with expedition.

6. The District Collectors are also directed to ensure that once the order for eviction or payment of compensation as damages is passed, the same is executed at the earliest, in appropriate cases by using such force as may be necessary. Realization of the amount of compensation for damage, misappropriation or wrongful occupation of gaon sabha land shall also be made from the person concerned as arrears of land revenue expeditiously.

7. So far as the illegal possession of the housing sites alloted to the individuals is concerned, we may refer to the provision contained in Section 122-D, which provides a complete procedure for restoration of possession of land alloted to any person for the purposes of building of house and on such land any person other than the allottee is in occupation. Under Section 122-D, as well, the Assistant Collector has been empowered to take action for restoration of the possession to the allottee of the land allotted for housing purpose, if the same is in illegal occupation of any other person.

8. sub-section (2) of section 122-d of u.p. Z.A. & L.R. Act provides that a person having been once evicted under section 122-d (1) is liable to be punished with imprisonment for a term which may extend to two years and which shall not be less than three months and also with fine which may extend to three thousand rupees. Thus, in case any person re-occupies the land allotted as housing site, after once being evicted, he can be proceeded against by launching criminal prosecution under Section 122-D (2) of the Act. The District Collectors shall ensure that besides eviction proceedings under Section 122-D, criminal proceedings are also instituted against such persons.

25. In view of aforesaid observations/directions, all the writ petitions are finally disposed of with a further direction to the District Collectors and other revenue authorities of the district to take appropriate action and to act in accordance with the observations made in this judgment and the provisions contained in U.P. Z.A. & L.R. Act and the Rules framed thereunder. The mechanism evolved under the Government Orders referred to hereinabove for monitoring the eviction proceedings and implementation of the orders of eviction shall continue.

26. There shall be no orders as to costs.

Let a certified copy of this order be furnished by the office free of charge to the learned Chief Standing Counsel, who shall transmit the same to the Chief Secretary and Principal Secretary (Revenue), Government of Uttar Pradesh, Commissioner-cum-Secretary, Board of Revenue, Uttar Pradesh, Lucknow and all the Divisional Commissioners and District Collectors in the State.

Source : https://www.casemine.com/judgement/in/56b49313607dba348f0042d4

Smt. Jasveer Kaur & Ors. vs. State of Uttarakhand & Ors. [18.08.2015]

Uttarakhand High Court

WPMS--1402/2014  (18 Aug, 2015)

Present petition is filed by the petitioners for quashing of the order dated 8.4.2013, whereby land belonging to khasra nos. 30,41, 45 and 50 of Village Dohri Vakeel, Tehsil Kashipur, District Udham Singh Nagar was allotted to respondent no. 6. Further seeking writ of mandamus commanding the respondents to remove the encroachments from the public pathway situated in the land of khasra nos. 30, 41, 45 and 50 of Village Dohri Vakeel, Tehsil Kashipur, District Udham Singh Nagar and alternatively to grant alternate passage to the petitioners to reach to their land of khasra nos. 31 and 2/2. Perusal of Annexure No. 3 to the writ petition, certified copy of the extract of khatauni of Village Dohri Vakeel, the then Pargana Kashipur, the then District Nainital, would reveal that entire land of khasra no. 31 measuring 0.50 hectare, khasra no. 41 measuring 0.57 hectare, khasra no. 45 measuring 1.15 hectare and khasra no. 50 measuring 0.42 hectare is recored as public pathway. Perusal of certified copy of village map would reveal that 2 there is a public pathway over the entire area of khasra nos. 30, 41, 45 and 50 of Village Dohri Vakeel. Mr. A.K. Joshi, learned Addl. C.S.C. appearing for respondent nos. 1, 2, 3, 4 & 5, does not dispute entries made in the khatauni as well as in the village map and fairly submits that entire area of khasra nos. 30, 41, 45 and 50 of Village Dohri Vakeel is being used as a public pathway. Undisputedly, vide Government Order dated 8.4.2013, Annexure No. CA-5 to the counter affidavit of respondent no. 6, properties mentioned therein including part of khasra nos. 30, 41, 45 and 50 were allotted in favour of respondent no. 6. Mr. Sharad Sharma, learned Senior Counsel assisted by Ms. Vandana Singh, learned counsel for respondent no. 6, has vehemently objected the maintainability of the writ petition, mainly on two grounds. Firstly, the petitioners have not filed copy of the order dated 8.4.2013, whereby land of disputed khasra nos. 30, 41, 45 and 50 of Village Dohri Vakeel was allotted in favour of respondent no. 6. Placing reliance on the judgment of Honble Apex Court in the case ofSurinder Singh v. Central Government and others reported in AIR 1986 SC 2166 and judgment of Division Bench of Allahabad High Court in the case of Pramod Kumar & others v. Sub-Divisional Officer, Khaga, Fatehpur & others reported in 1999 (90) Revenue Decisions page 649, Mr. Sharad Sharma, learned Senior Counsel has vehemently argued that since petitioners have not filed 3 copy of the impugned allotment order dated 8.4.2013, therefore, writ petition is liable to be dismissed. The second point raised by Mr. Sharad Sharma, learned Senior Counsel appearing for respondent no. 6, is that the petitioners themselves along with one Manjeet Singh have filed suit for permanent prohibitory injunction being OS No. 181 of 2013 in the Court of Civil Judge (Jr. Div.), Kashipur pertaining to the disputed khasra nos. 30, 41, 45 and 50, wherein ad interim injunction was declined, however, petitioners have concealed this important fact of filing of the civil suit and rejection of the ad interim injunction application, therefore, present petition should be dismissed on the ground that petitioners have not approached this Court with clean hands. Mr. Sharad Sharma further contends that if civil suit was pending on the date of filing of the writ petition seeking same relief, it ought not to have been entertained. Further contends that dismissal of the civil suit later on for non-prosecution vide order dated 8.7.2014 shall not make any difference. According to Mr. Sharad Sharma, since entire land was declared surplus under section 27 (4) of the uttar pradesh imposition of ceiling on land holdings act, 1960, therefore, petitioners, if so advised, may challenge the order declaring the land as surplus land. Mr. Sharma further contends that Manjeet Singh and few villagers have agreed with the District/Tehsil Revenue Authorities that disputed land may be allotted to respondent no. 6 and alternate raasta be provided to them over/through other properties. 4 I have carefully perused both the judgments cited by Mr. Sharad Sharma, learned Senior Counsel appearing for respondent no. 6. In the case of Surinder Singh (supra) and in the case of Pramod Kumar (supra), copy of the order under challenge in the writ petition was not available on the record, therefore, contents of the order and reasoning and the grounds of passing the impugned order were not before the Court. In such circumstances, Honble Apex Court and the Division Bench of Allahabad High Court have held that in the absence of impugned order, same ought not to have been quashed. However, in the case in hand, true and correct copy of the impugned order dated 8.4.2013, has been placed on the record by respondent no. 6 himself as CA-5 to his counter affidavit, wherein reasoning and grounds of allotting the land in favour of respondent no. 6 are clearly mentioned. Therefore, this Court is able to examine the contents of the impugned order dated 8.4.2013. Consequently, this ground raised by Mr. Sharad Sharma, learned Senior Counsel appearing for respondent no. 6, is hereby over-ruled. Let me now examine the another ground taken by Mr. Sharad Sharma. In the rejoinder affidavit, the petitioners have specifically stated that they have not filed OS No. 181 of 2013. While exercising the writ jurisdiction under Article 226 of the Constitution of India, this Court, ordinarily, should not enter into the complicated question of fact to find out as to whether suit being OS No. 181 of 2013 was filed by the petitioners or not. Even if it is presumed that 5 suit was filed by the petitioners, as advised by Mr. Sharad Sharma, learned Senior Counsel appearing for respondent no. 6, since suit itself was dismissed for non-prosecution on 8.7.2014, therefore, as on day no civil suit is pending involving identical question of law. Moreover, dismissal of civil suit for non-prosecution shall not act as res judicata in the present writ petition. Moreover, since, this is not in dispute that entire area of khasra nos. 30, 41, 45 and 50 of Village Dohri Vakeel, Tehsil Kashipur, District Udham Singh Nagar is recorded as a public pathway, therefore, while hearing the writ petition under article 226 of the constitution of india, this Court should examine, rather must examine, as to whether public pathway can be allotted by the State Government. Moreover, while doing the complete justice, the technicality should not come in the way of this Court. If this Court finds that order impugned in the writ petition is totally without jurisdiction and ipso facto illegal, then writ petition should not be thrown on the hyper-technical ground that the petitioners themselves have filed civil suit, which was later on dismissed for non-prosecution. Mr. A.K. Joshi, learned Addl. C.S.C. appearing for respondent nos. 1 to 5, in all fairness for which he is known at the Bar, has admitted that the land recorded and is being used as public pathway cannot be allotted for any commercial or agricultural purpose. Honble Apex Court in the case of Jagpal Singh and others v. State of Punjab and othersreported in (2011) 11 SCC 396, in paragraph nos. 3, 4, 15, 16, 17, 18,19 and 20, has held as under : 

3. The protection of commons rights of the villagers were so zealously protected that some legislation expressly mentioned that even the vesting of the property with the State did not mean that the common rights of villagers were lost by such vesting. Thus, inChigurupati Venkata Subbayya vs. Paladuge Anjayya, 1972(1) SCC 521 (529) this Court observed : "It is true that the suit lands in view of section 3 of the estates abolition act did vest in the Government. That by itself does not mean that the rights of the community over it were taken away. Our attention has not been invited to any provision of law under which the rights of the community over those lands can be said to have been taken away. The rights of the community over the suit lands were not created by the landholder. Hence those rights cannot be said to have been abrogated by section 3(c) of the estates abolition act.

4. What we have witnessed since Independence, however, is that in large parts of the country this common village land has been grabbed by unscrupulous persons using muscle power, money power or political clout, and in many States now there is not an inch of such land left for the common use of the people of the village, though it may exist on paper. People with power and pelf operating in villages all over India systematically encroached upon communal lands and put them to uses totally inconsistent with its original character, for personal aggrandizement at the cost of the village community. This was done with 7 active connivance of the State authorities and local powerful vested interests and goondas. This appeal is a glaring example of this lamentable state of affairs.

15. In M.I. Builders (P) Ltd. vs. Radhey Shyam Sahu, 1999(6) SCC 464 the Supreme Court ordered restoration of a park after demolition of a shopping complex constructed at the cost of over Rs.100 crores.

16. In Friends Colony Development Committee vs. State of Orissa, 2004 (8) SCC 733 this Court held that even where the law permits compounding of unsanctioned constructions, such compounding should only be by way of an exception. In our opinion this decision will apply with even greater force in cases of encroachment of village common land. Ordinarily, compounding in such cases should only be allowed where the land has been leased to landless labourers or members of Scheduled Castes/Scheduled Tribes, or the land is actually being used for a public purpose of the village e.g. running a school for the villagers, or a dispensary for them.

17. In many states Government orders have been issued by the State Government permitting allotment of Gram Sabha land to private persons and commercial enterprises on payment of some money. In our opinion all such Government orders are illegal, and should be ignored.

18. 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 8 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.

19. In this connection we wish to say that our ancestors were not fools. They knew that in certain years there may be droughts or water shortages for some other reason, and water was also required for cattle to drink and bathe in etc. Hence they built a pond attached to every village, a tank attached to every temple, etc. These were their traditional rain water harvesting methods, which served them for thousands of years.

20. Over the last few decades, however, most of these ponds in our country have been filled with earth and built upon by greedy people, thus destroying their original character. This has contributed to the water shortages in the country. Also, many ponds are auctioned off at throw away prices to businessmen for fisheries in collusion with authorities/Gram Panchayat officials, and even this money collected from these so called auctions are not used for the common benefit of the villagers but misappropriated by certain individuals. The time has come when these malpractices must stop. As per the dictum of Honble Apex Court in the case of Jagpal Singh (supra), the land reserved for the community like public pathway, park, village pond, grazing grounds, etc. etc. should not be allowed to be allotted by the State Government or the Gram Sabha for any purpose and community at large should not be deprived from using the land, which was reserved for their purposes. Since, property in question is a public pathway, therefore, it cannot be and could not have been declared as surplus land treating the same as holding of some agriculturists. Therefore, declaration of surplus land is without jurisdiction qua the land in question. Any compromise or settlement entered into between the revenue authorities and some of the villagers permitting the revenue authorities to allot the land of public pathway itself is without jurisdiction and ipso facto invalid and void ab initio. Mr. Sharad Sharma, learned Senior Counsel appearing for respondent no. 6, does not dispute, as held hereinbefore, that entire area of khasra nos. 30, 41, 45 and 50 are recorded as public pathway. He does not challenge the correctness of the entries made in the revenue record. Therefore, allotment of the public pathway by the impugned order is without jurisdiction. Consequently, writ petition succeeds and is hereby allowed. Impugned order dated 8.4.2013, Annexure No. CA-5 to the counter affidavit of respondent no. 6, is hereby quashed qua khasra nos. 30, 41, 45 and 50. Writ of mandamus is issued against respondent no. 2 to remove the illegal possession of respondent no. 6, in any case, within six weeks from today. Respondent no. 2 shall be at liberty to use such police force, which respondent no. 2 may think fit to remove the possession of respondent no. 6 therefrom. No order as to costs. (Alok Singh, J.) 18.08. 2015 Avneet/.

Source : https://www.casemine.com/judgement/in/5735caace5610925aa7dc255

Orissa High Court in Lukrak Alias Ludrak Sunari vs State of Orissa [Order dated 17.05.2017]

Orissa High Court

SA--140/1990 (17 May, 2017)

PRESENT: THE HONOURABLE DR. JUSTICE A.K.RATH 

Date of hearing: 12.05.2017 : 

Date of judgment: 17.05.2017 

Dr. A.K.Rath, J 

This is plaintiffs appeal against a reversing judgment in a suit for declaration of right, title and interest and permanent injunction.

2. The suit schedule land is a tank and its ridge appertaining to Khata No.170, Plot Nos.617 and 618, area Ac.3.30 dec. and Ac.0.41 dec. of Mouza-Sikuan Kular in the district Kalahandi.

3. The case of the plaintiff is that one Chandra Sunari was the original owner of the suit tank. He had excavated the tank for the purpose of irrigation and pisciculture. There was partition amongst the sons of Chandra in the year 1930. The suit tank fell to the share of Lambodar. After his death, the plaintiff being the successor, inherited the suit property. The plaintiff is in possession of the suit tank peacefully, continuously and openly for more than 40 years and as such, perfected title by way of adverse possession. He came to know that the suit tank had been recorded in the name of the State Government under Rakhit Khata. In spite of his protest, the Block Development Officer, Khariar, defendant no.3 leased out the suit tank to defendant no.4. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra.

4. Defendants filed written statement denying the assertions made in the plaint. It is pleaded that Chandra Sunari had no semblance of right, title and interest over the suit reservoir. He had not constructed the same. The tank is recorded in the name of the State of Orissa under Rakhit Khata. The assertion of the plaintiff that he was in possession of the suit tank for more than 40 years peacefully and perfected title by way of adverse possession had been specifically denied. The suit reservoir had been transferred to the Duajhar Gram Panchayat on 11.6.1956 by the Government of Orissa in the Revenue Department. Neither the plaintiff nor his forefather had ever possessed the suit tank. The BDO, Khariar, defendant no.3, had leased out the suit tank to defendant no.4.

5. On the inter se pleadings of the parties, learned trial court struck six issues. To substantiate the case, the plaintiff had examined two witnesses and on his behalf, one document had been exhibited. On behalf of the defendants, two witnesses had been examined and five documents exhibited. Placing reliance on Jamanbandi register, vide Ext.1, learned trial court came to hold that the suit land was in possession of Chandra Sunari. He excavated the suit tank. He was in possession of the same. It further held thatevidence of D.W.1 shows that the suit property belongs to the State and has been recorded in the Rakhita Khata. The plaintiff does not dispute the claim of the defendants. The suit tank was in possession of the plaintiff since the time of his grand-father. The plaintiff had perfected title by way of adverse possession. Held so, it decreed the suit.

6. Assailing the judgment and decree of the learned trial court, the State of Orissa filed Title Appeal No.13/14 of 1986-89 before the learned Sub-Judge, Nawapara. The learned appellate court, on a threadbare analysis of the evidence, both oral and documentary as well as pleadings, came to hold that Plot Nos.617 and 618 stands recorded in the name of the State of Orissa as reserve. Ext.B-permanent register of sairat shows that Plot Nos.117 and 118 measuring Ac.3.30 decimals and Ac.0.41 decimals of MauzaSikuarakala which are tank and ridge had been transferred to the Gram Panchayat for pisciculture. The same is maintained by the Tahasil Office. Ext.C discloses that the suit tank had been transferred to Dua Jhar Gram Panchayat for pisciculture. Ext.E- register maintained by the BDO discloses that the tank had been transferred to the Gram Panchayat. It further held that the suit tank is the property of the State and plaintiff has no semblance of right, title and interest over the same. Held so, learned appellate court allowed the appeal. It is apt to state here that during pendency of the second appeal, the appellant no.1 died, whereafter his legal representatives have been brought on record.

7. The second appeal was admitted on the following substantial question of law enumerated in Ground No.(ii). The same is -

(ii) Whether the learned lower appellate court can ignore the principles laid down inarticles 64 and 65 of the limitation act to non-suit the plaintiff. In the facts and circumstances of this case the suit land having been recorded in the name of plaintiffs grand father since 1922-23 (Ext.1) and he being in continuous possession since then, the plaintiff has acquired title to the suit property. In course of hearing the following substantial question of law was framed.

1. Whether the plaintiff can maintain the suit for declaration of title on the basis of adverse possession in the absence of date of entry into the suit land ?

8. Mr. Balakrishna, learned counsel for the appellants, submitted that Chandra Sunari was the original owner of the suit land. He had excavated the tank over the suit property for the purpose of irrigation and pisciculture. In the family partition amongst his sons, the suit tank fell to the share of the father of the plaintiff. After the death of his father, the plaintiff inherited the suit land along with the other properties. Jamanbandi, Ext. 1, shows that the suit lands as per 1922-23 settlement records have been improved by Chandra Sunari. There is no reason to disbelieve the same. He further submitted that the plaintiff was in possession over the suit land. He was not dispossessed from the suit land at any point of time and as such, he has perfected title by way of adverse possession. There is no evidence on record that the suit tank was leased out to defendant no.4.

9. Per contra, Mr. Mishra, learned Addl. Standing Counsel, submitted that the suit land has been recorded in the name of the Government under Rakhit Khata. The suit lands are the property of the Government. There is no material on record that the plaintiff has perfected title by way of adverse possession. The suit tank is recorded in the name of the State and the same was leased out to defendant no.4. The plaintiff has no semblance of right, title and interest over the same.

10. Before proceeding further, it is apt to refer to the decision of the apex Court in the case of Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC 779. The apex Court at para 11 of the report observed as under :- "In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period." The court further observed that plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. (Emphasis laid)

11. The suit land is a big tank having area of Ac.3.71 dec. The same has been recorded in the name of the State Government. It was transferred to Dua Jhar Gram Panchayat. The tank was leased out to defendant no.4 to allot the job work under the food for work programme. There is no pleading with regard to the date of entry of the plaintiff into the suit land. Mere possession of the suit land for long time is not suffice to hold that the plaintiff had perfected title by way of adverse possession, unless the classical requirements of adverse possession nec vi, nec clam, nec precario are pleaded and proved. Adverse possession is a mixed question of fact and law. On a threadbare analysis of the evidence available on record, both oral and documentary as well as pleadings, learned appellate court has negatived the plea of adverse possession of the plaintiff over the suit tank. Findings recorded by the learned appellate court cannot be said to be perverse. The substantial questions of law are answered accordingly.

12. Before parting with the case, it is apt to refer to a decision of the apex Court in the case of Jagpal Singh and others v. State of Punjab and others (2011) 11 SCC 396. The apex Court has expressed its concern over the public utility on lands in villages used for centuries used for the common benefit of the villagers of the village and held thus:- 

2.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.
 3.The protection of commons rights of the villagers were so zealously protected that some legislation expressly mentioned that even the vesting of the property with the State did not mean that the common rights of villagers were lost by such vesting. Thus, inChigurupati Venkata Subbayya vs. Paladuge Anjayya, 1972(1) SCC 521 this Court observed : "23. It is true that the suit lands in view of section 3 of the estates abolition act did vest in the Government. That by itself does not mean that the rights of the community over it were taken away. Our attention has not been invited to any provision of law under which the rights of the community over those lands can be said to have been taken away.. The rights of the community over the suit lands were not created by the principal or any other landholder. Hence those rights cannot be said to have been abrogated by section 3(c) of the estates abolition act. What we have witnessed since Independence, however, is that in large parts of the country this common village land has been grabbed by unscrupulous persons using muscle power, money power or political clout, and in many States now there is not an inch of such land left for the common use of the people of the village, though it may exist on paper. People with power and pelf operating in villages all over India systematically encroached upon communal lands and put them to uses totally inconsistent with their original character, for personal aggrandisement at the cost of the village community. This was done with active connivance of the State authorities and local powerful vested interests and goondas. This appeal is a glaring example of this lamentable state of affairs. Held so, the apex Court issued the following directions:-

 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.

13. In the result, the appeal is dismissed. No costs. DR. A.K.RATH, J Orissa High Court, Cuttack. The 17th May, 2017/Pradeep.

Source : https://www.casemine.com/judgement/in/5927089f4a93264758bc2f2e

Orissa High Court in Muralilal Patel vs. State of Orissa & Anr. [Order dated 12.04.2017]

Orissa High Court

RSA--18/2005 (12 Apr, 2017)

PRESENT: THE HONOURABLE DR. JUSTICE A.K.RATH 

Date of Hearing: 06.04.2017 & Date of Judgment:12.04.2017 

Dr.A.K.RATH, J. 

This is an appeal by the plaintiff.

2. The dispute pertains to a big tank having an area of Ac.36.68 dec. of land appertaining to C.S. Holding No.184, Khata Nos.1106, 1107, 1264, 1265, 1302 and 1306 of mouza Sikabahanga in the district of Bolangir.

3. The case of the plaintiff is that his great grandfather Pati Sai alias Patel was the Gountia (Thikadar) of village Sikabahenga. Thereafter his grandson Hari Sai (Patel) and after him, his son Dharamsingh Patel was the Gountia of the village till the year 1950. The village was originally a forest. Pati Sai had cleared the forest and settled there. He reclaimed some waste lands and excavated a tank. He was using the water of the tank for irrigation of his land. He was also carrying on pisciculture. On 27.11.1822, the then Superintendent of Patna-State had granted protected status to him over the tank due to his long possession and improvement made over it. In 1894 the tank was recorded in the name of Pati Gountia in Jalamagna khata. During the settlement of the year 1916, the same was recorded in the name of Hari Sai Patel. While the mater stood thus, during the settlement of the year 1936, all the tanks and tanks of Patna-State, whether private or public, were recorded in the name of Patna-State in Jalchar khata. In spite of the same, Hari Sai Patel remained in possession of the same. There was discontentment amongst the subjects of Patna-State due to inclusion of all the water tanks of the State in Jalachar khata. The King of Patna-State issued a proclamation that inclusion of water tanks in Government Jalchar khata would not affect the right of its owner. He invited objection from the persons who had interest on those tanks. Accordingly, Hari Sai Patel filed a petition before the Sub-Divisional Officer, Revenue of the then Patna-State claiming his ownership and fishery right over the suit tank. After merger of Patna-State with the Union of India, the said case was transferred to the Superintendent of Land Records and renumbered as Fishery Case No.25 of 1950. The Superintendent of Land Records by order dated 14.3.50/14.9.51 issued Patta of the suit tank in favour of Hari Sai. After Hari Sai his son Dharamsingh Patel became the owner of the tank. The Government of Orissa transferred the same to Saunthpur Gram Panchayat and, thereafter to the Irrigation Department of the Government of Orissa. The transfer was not lawful and binding on him. The defendants have no semblance of right, title, interest and possession over the tank. On 1.7.1994, the defendants objected the plaintiff and his father to do pisciculture. After issuing notice to the Collector, Bolangir under section 80 of the c.p.c. and the Sarpanch of Saunthpur Gram Panchayat under section 138 of the orissa gram panchayat act, he instituted the suit for declaration of right, title and interest over the suit tank, confirmation of his possession with right of pisciculture over it, in alternate delivery possession of the same to him evicting the defendants and permanent injunction restraining the defendants from entering into the tank.

4. The State of Orissa, defendant no.1 contested the suit without filing the written statement. The defendant no.2 filed a written statement denying the assertions made in the plaint. According to defendant no.2, the plaintiff has no right, title, interest and possession over the suit tank. The lands, which were in possession of Dharamsingh Patel as Thikadar of the village, had been settled in his name as raiyat after abolition of Thakidari system. The Sub-Divisional Officer, Bolangir had transferred the suit tank to Saunthpur Gram Panchayat on 27.5.1962. Since then the Gram Panchayat is exercising its ownership over it. Village Sikabahanga was under Chhatamakhana Gram Panchayat for a certain period. Dharamsingh Patel, father of the plaintiff, was the Sarpanch of Chhatamakhana Gram Panchayat in the year 1967-68. He had maintained the suit tank on behalf of the Gram Panchayat. The plaintiff and his relatives had taken lease of the suit tank from Chhatamakhana Gram Panchayat in the year 1970-71, 1972-73 and 1974-75 respectively. From the year 1991, the suit tank is under the direct supervision of the Minor Irrigation Department of the Government of Orissa and the same is reserved for public purpose. The Minor Irrigation Department has spent a huge amount of money for its maintenance. No notice had been issued to the defendants before institution of the suit.

5. Stemming on the pleadings of the parties, the learned trial court struck eleven issues. To substantiate the case, the plaintiff had examined three witnesses and on his behalf, nineteen documents had been exhibited. The defendants had examined two witnesses and on their behalf, seven documents had been exhibited. The learned trial court, on a thread bare analysis of the evidence on record, both oral and documentary, and on an anatomy of the pleadings, came to hold that father of the plaintiff and the plaintiff had not exercised their rights of fishery over the suit tank after its transfer to Chhatamakhana G.P. in the year 1962 and latter to Saunthpur Gram Panchayat except taking lease of the same for the year 1974-75. The other persons had taken lease of the tank from the Panchayat annually in between the year 1967 to 1994. It further held that the plaintiff and his ancestors were neither in possession of the suit tank nor had exercised fishery right over it in between 1950-95. Held so, the learned trial court dismissed the suit. The unsuccessful plaintiff challenged the judgment and decree of the learned trial court before the learned District Judge, Bolangir, which was subsequently transferred to the court of the learned Addl. District Judge, (FTC), Bolangir and renumbered as Title Appeal No.27/49 of 2000-02. The said appeal was dismissed.

6. The Second Appeal was admitted on 1.12.2006 on the following substantial questions of law:

1. When defendants do not claim any right over the suit tank on the basis of adverse possession, whether findings of the learned courts below that the suit is barred by Article 64 and 65 of Limitation Act is sustainable in the eye of law ?

2. When both the courts below have not discarded the most important and material documentary evidences like Ext.2 to Ext.7 and Ext.12, Ext.13, Ext.14 & 14(A) and Ext.15 which show that land record, Superintendent has conferred fishery right on the father of the plaintiff, whether dismissal of the suit for declaration of the fishery right of the plaintiff on the ground that plaintiff is not in possession of the suit tank is illegal, perverse and is not sustainable in the eye of law ?

3. When defendants do not plead and prove that from which date they possessed the suit tank adversely to the interest of plaintiff, whether findings of both Courts below that fishery right of the plaintiff has been extinguished can be sustained in the eye of law ?

4. Whether findings of the Court below that defendant no.1 is in possession of the suit land cannot be sustained in the eye of law when the defendant no.1 has failed to produce and prove so called lease deed on the basis of which he claims to be in possession of the suit tank ?

7. Heard Mr.Budhiram Das, learned Advocate for the appellant and Mr.Swayambhu Mishra, learned Additional Standing Counsel for respondent no.1.

8. Mr.Das, learned Advocate for the appellant submitted that the great grandfather of the plaintiff was the Gountia of the village. He excavated the suit tank. He was using the water of the said tank for irrigation of his agricultural land. He was rearing fish on the tank. After him, his grandson Hari Sai Patel and thereafter his son Dharmsingh Patel became the Gountia of the village. The then Supt. of Patna-State had granted protected status to Pati Gountia over the said tank. In 1894 settlement, the suit tank was recorded in the name of Pati Gountia in Jalamagna khata. The same was also recorded in the name of Hari Sai Patel in settlement year 1916. However, in the settlement of the year 1936, the same was recorded in the name of Patna-State in Jalachar khata, but then Hari Sai Patel remained in possession of the same. When the King of Patna- State issued a proclamation inviting objection from the persons, who had interest over the tank, Hari Sai Patel filed a petition on 21.2.1942 before the Sub-Divisional Officer, Revenue, Patna-State claiming his ownership and fishery right over the suit tank. After merger of the Patna-State with the Union of India by order dated 14.3.50/14.9.51, the Suptd. of Land Records issued patta in favour of Hari Sai Patel. After Hari Sai Patel, his son Dharmasingh Patel became the owner of the said tank. He further submitted that notwithstanding transfer of land in favour of Saunthapur Gram Panchayat and therafter Irrigation Department, the plaintiff has unfettered right to carry on pisciculture over the land.

9. Per contra, Mr.Mishra, learned Additional Standing Counsel for respondent no.1 submitted that Gountia system in the State has been abolished. After abolition of Gountia system, the State of Orissa became the paramount owner of the suit tank. The lands, which were in khas possession of the Gountia, had been settled in his name. Neither the ancestors of the plaintiff nor the plaintiff was in possession of the suit tank. The suit tank was transferred by the State in favour of Saunthapur Gram Panchayat. The father of the plaintiff was Sarpanch of Chhatamakhana Gram Panchayat in the year 1967-68 and had maintained the suit tank on behalf of the said Gram Panchayat. The plaintiff and his relatives had taken lease of the suit tank from Chhatamakhana Gram Panchayat in the year 1970-71, 1972-73 and 1974-75. Since 1991 the suit tank is under the direct supervision of Minor Irrigation Department of Orissa.

10. In Gangadhar Sai and others Vrs. The Collector, Bolangir and others (S.A.No.90 of 1994 disposed of on 3.3.2017), the question arose as to whether right to catch and carry away the fish is a profit or benefit arising out of land is immovable property within the meaning and ambit of the Transfer of Property Act, and its sale has to be by means of a registered instrument in case its value exceeds Rs.100/-.

11. This Court held : Ananda Behera and another v. State of Orissa and another, AIR 1956 SC 17 is a locus classicus on the subject. The dispute pertained to fishery rights of the plaintiffs over a portion of Chilka lake. The estate was vested in the State of Orissa under the Orissa Estates Abolition Act. Long before vesting of the estate, the petitioners had entered into contracts with the ex proprietor Raja of Parikud and had obtained from the latter, on payment of heavy sums, licences for catching and appropriating all the fish from the fisheries detailed in the schedule of the petition. The State of Orissa refused to recognise the licenses and were about to re- auction the rights. At this juncture, the petitioner had approached the apex Court under article 32 of the constitution of indiaon the ground that their fundamental rights enshrined under Articles 19(1)(f) and 31 (I) were infringed. The question arose before the apex Court as to whether the petitioners had acquired any rights or interests in "property" by their several "purchases". The Constitution Bench of the apex Court held that the lake is immoveable property. After promulgation of the Orissa Estate Abolition Act, it vested in the State of Orissa. Right to catch and carry away fish in specific sections of the lake over a specified future period amounts to licence to enter on the land coupled with a grant to catch and carry away the fish, that is to say, it is a profit a prendre which has been regarded as a benefit that arises out of the land and, as such, is immoveable property. If profit a prendre is regarded as tangible immoveable property and the property value is more than Rs.100/- it requires registration under section 54 of the transfer of property act. The same view was followed in the Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. v. Sipahi Singh and others, AIR 1977 SC 2149. The apex Court in uncertain terms held that the right to catch and carry away the fish being a 'profit a prendre' i.e. a profit or benefit arising out of the land, it has to be regarded as immovable property within the meaning of the Transfer of Property Act, read in the light of section 3 (26) of the general clauses act. If a 'profit a prendre' is tangible immovable property, its sale has to be by means of a registered instrument in case its value exceeds Rs.100/- because of section 54 of the transfer of property act. If it is intangible, its sale is required to be effected by a registered instrument whatever its value. Therefore, in either of the two situations, the grant of the 'profit a prendre' has to be by means of a registered instrument. Accordingly, the transaction of sale of the right to catch and carry away the fish if not effected by means of a registered instrument would pass no title or interest.

12. The ratio in the case of Gangadhar Sai (supra) applies with full force to the facts of this case.

13. The dispute pertains to the plaintiffs claim over the suit tank, the value of which, by no stretch of imagination is less than Rs.100/-. Right to catch and carry away the fish is a profit a prendre. The same is construed to be immovable property within the meaning and ambit of the Transfer of Property Act, 1982. Its sale has to be by means of a registered instrument in case its value exceeds Rs.100/- Since no registered instrument has been executed, the plaintiffs have no rights over the tank in question. Further the Gountia system in the State has been abolished. The tank vested in the State free from all encumbrances. The State of Orissa is the paramount owner of the tank.

14. Resultantly, the appeal fails and is dismissed. No costs.

15. Before parting with the case, it is apt to refer to a decision of the apex Court in the case of Jagpal Singh and others Vrs. State of Punjab and others (2011) 11 SCC 396. The apex Court has expressed its concern over the public utility on lands in villages used for centuries used for the common benefit of the villagers of the village and held thus:-

2.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.

3.The protection of commons rights of the villagers were so zealously protected that some legislation expressly mentioned that even the vesting of the property with the State did not mean that the common rights of villagers were lost by such vesting. Thus, in Chigurupati Venkata Subbayya vs. Paladuge Anjayya, 1972(1) SCC 521 (529) this Court observed : "23. It is true that the suit lands in view of section 3 of the estates abolition act did vest in the Government. That by itself does not mean that the rights of the community over it were taken away. Our attention has not been invited to any provision of law under which the rights of the community over those lands can be said to have been taken away.. The rights of the community over the suit lands were not created by the principal or any other landholder. Hence those rights cannot be said to have been abrogated by section 3(c) of the estates abolition act."

4. What we have witnessed since Independence, however, is that in large parts of the country this common village land has been grabbed by unscrupulous persons using muscle power, money power or political clout, and in many States now there is not an inch of such land left for the common use of the people of the village, though it may exist on paper. People with power and pelf operating in villages all over India systematically encroached upon communal lands and put them to uses totally inconsistent with its original character, for personal aggrandizement at the cost of the village community. This was done with active connivance of the State authorities and local powerful vested interests and goondas. This appeal is a glaring example of this lamentable state of affairs. Held so, the apex Court issued the following directions:-

23. 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. ....

 Dr.A.K.Rath, J. Orissa High Court, Cuttack. The 12th April, 2017/CRB.

Source : https://www.casemine.com/judgement/in/596a0e4dce686e4be9d7b8f8