Uttarakhand High Court
WPMS--85/2011 (28 Apr, 2015)
Present Petition is filed assailing the Resolution dated 01.06.2009, Annexure No. 5 to the writ petition, passed by Nagar Panchayat/Town Area Committee, Landhora, Roorkee District Haridwar, whereby land of Khasra No. 780 measuring 0.697 hectare was decided to reserve for allotment for the residential purpose to the weaker sections of the society as well as judgment and order dated 20.11.2010, Annexure no. 7 to the writ petition, passed by the Assistant Collector, 1st Class/Deputy Collector, Roorkee, whereby land of Khasra No. 780 measuring 0.697 hectare Village Landhora Pargana Manglaur Tehsil Roorkee, Distrcit Haridwar was directed to be recorded as reserved land for the allotment for the residential purposes to the weaker sections of the society. Undisputedly, land of Khasra No. 780 measuring 0.697 hectare was recorded as Khaliyan in the Khasra and Khatauni maintained by Revenue Authorities; perusal of Annexure no. 2 as well as photographs Annexure no. 4 would reveal that although land of Khasra no. 780 measuring 0.697 hectare is recorded as Khaliyaan, however, on the spot, there is a village pond (water body). Undisputedly, after the creation of the Town Area, land of Khasra No. 780 measuring 0.697 hectare had fallen within the territory of Town Area, Landhora. Honble Apex Court in the case of Jagpal Singh and others Vs. State of Punjab and others reported in 2011 (11) SCC 396 in paragraph nos. 2, 3, 4, 17, 18, 19, 20 and 23 has held as under:
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. Paladuga Anjayya (1972)
1 SCC p. 521 and at page 529 this Court observed: (SCC para 23)
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 person 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 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.
17. In many States government orders have been issued by the State Government permitting allotment of the 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. Kamal Devi (2001) 6 SCC 496 [followed by the Madras High Court in L. Krishnan v. State of T.N. reported in (2005) 4 CTC 1 (Mad)] 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.
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 rainwater 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 filed 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 is not used for the common benefit of the villagers but misappropriated by certain individuals. The time has come when these malpractices must stop.
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 the 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. Regularisation should only be permitted in exceptional cases e.g. where lease has been granted under some government notification to landless labourers or members of the Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land. I
In view of the judgment of Honble Apex Court in the case of Jagpal Singh (Supra), common utility land can neither be allotted for commercial or residential purposes nor can be permitted to be used for any other purposes. Perusal of the impugned order dated 20.11.2010, Annexure no. 7 to the writ petition would reveal that case was admitted by the respondent no. 4 under the miscellaneous category and thereafter, he has passed the order under Rule 155 A of Chapter VIIIA of the Uttar Pradesh Land Records Manual, directing to change the entries in the Revenue record from Khaliyaan to land reserved for the allotment for the residential purposes to the weaker sections of the society. Rule 155A of Chapter VIIIA of the Uttar Pradesh Land Records Manual reads as under:
155 A- Authority empowered to pass orders-(1) The following entries regarding changes or transactions affecting the rights or interest of tenure holders shall be made only under the orders of the authority mentioned against each item: (1) Entries of undisputed succession Bhulekh Nirikshak or Tahsildar (2) Entries regarding new tenure holders on the basis of leases executed by Land Management Committees. Bhulekh Nirikshak (3) Entries of transfers of land by bhumidhars with transferable rights. (4) Entries of surrender. Tahsildar. (5) Entries in cases of abandonment. (6) Disputed cases of succession. (7) Entries of changes in Land Revenue or rent. (8) Numbering and recording of alluvial land added to the village and medications of entries regarding deluvian. Assistant Collectors Incharge of sub- division. (9) Entries respecting transfer of khata of one class to khata of another class. (10) Entries regarding new tenure-holders without registered leases. (11) Entries regarding new Tenure-holders on the basis of registered leases other than those executed by Land Management Committees. Tahsildar. (12) Any other change Transaction affecting rights of interest not falling under items (i) to
(ii) above. Assistant Collector Incharge of sub-division.
(ii) Orders in respect of the items (1) and (2) shall be communicated to the Bhulekh Nirikshak while those in respect of items (3) to (12) by the Registrar Kanungo. Perusal of Rule 155A of Chapter VIIIA of the Uttar Pradesh Land Records Manual would reveal that the Assistant Collector can pass the order for the change of the entries pertaining to the change in land revenue or rent, numbering and recording of alluvial land added to the village and modification of land regarding deluvian, entries respecting transfer of khata of one class to khata of another class, entries regarding new tenure- holders without registered leases and any other change transaction affecting rights of interest. Perusal of Rule 155A would reveal that the Assistant Collector, 1st Class in-charge of sub-division is not competent to reserve the public utility land for the allotment for the residential purposes to the weaker sections of the society. In view of the discussion made, hereinabove, in my humble opinion that impugned resolution and order passed by the Assistant Collector are without jurisdiction and are liable to be quashed. Consequently, writ petition succeeds and is hereby allowed. Impugned resolution dated 01.06.2009, Annexure No. 5 to the writ petition and order dated 20.11.2010, Annexure No. 7 to the writ petition are hereby quashed. Learned Collector is directed to restore the pond (water body) on the spot after removing the construction/encroachment therefrom. While doing so, learned Collector shall be at liberty to use such force, as he deems necessary. Entire exercise shall be completed within a period of ninety days from the date copy of this order is communicated to the learned Collector, Haridwar. Let copy of this order be forwarded to the learned Collector Haridwar, for information and compliance. (Alok Singh, J.) Dated: 28.04.2015 Deepak/.
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