HIGH COURT OF JUDICATURE AT ALLAHABAD
WRIT - C No. - 53100 of 2017
Budh Sen & 3 Others ...Petitioners
Versus
State of Uttar Pradesh & 3 Others ...Respondents
Counsel for Petitioner: Arpit Agarwal
Counsel for Respondent :- C.S.C., Amresh Singh
Hon'ble Ashok Kumar,J.
1. Heard Sri Arpit Agarwal, learned counsel for the petitioner, Sri Amresh Singh, learned counsel for the respondent no. 4 Gram Sabha and learned Standing Counsel.
2. By means of the present writ petition the petitioner has challenged the order dated 22.11.2016 passed by the Tehsildar Baheri, District Bareilly and the order of the District Magistrate dated 11.09.2017.
3. The dispute in the present case is with regard to the alleged illegal possession by the petitioner on a pond which admittedly belongs to the Gram Sabha. The petitioner has raised the objection with regard to the said allegations however the Lekhpal has submitted a report to the Tehsildar with regard to the possession on land by the petitioner.
4. The brief facts of the case are that the Lekhpal has prepared a report dated 08.03.2016, under Section 122 of U.P. Zamindari Abolition and Land Reforms Act, 1950, and thereafter a notice dated 06.04.2016 was issued to the petitioners under Section 122-B of the U.P.Z.A. and L.R. Act, 1950. A case has been registered against the petitioners on the basis of the report of the Lekhpal under Section 67 of the U.P. Revenue Code, 2016.
5. The objection has been filed by the petitioners with regard to the maintainability of the said proceedings. The petitioner has submitted that since the U.P.Z.A. and L.R. Act, 1950 has been abolished from 11.02.2016 and since then the Revenue Code of 2016 is in operation, therefore, the proceedings initiated under Section 122-B of U.P.Z.A. and L.R. Act, 1950 are void ab-initio as such without jurisdiction.
6. The Tehsildar concerned has decided the objection and has dropped the notice dated 06.04.2016 vide his order dated 23.08.2016.
7. After the aforesaid order dated 23.08.2016 another notice dated 30.09.2016 has been issued under the provisions of Rule 67(2) and 67(5) of the U.P. Revenue Code Rules, 2016. The petitioners has participated in the said proceedings and again has filed their objection.
8. The Tehsildar has considered the reply/objection and has rejected the same vide order dated 22.11.2016. The case has been proceeded on merits and the same has been decided by the Tehsildar considering the objection/reply of the petitioners.
9. Aggrieved by the order passed by the Tehsildar an appeal has been filed by the petitioners before the Collector, Bareilly, under Section 67(5) of the U.P. Revenue Code, 2016 which has been dismissed by the Collector vide its impugned order dated 11.09.2017, hence the present writ petition.
10. During the course of the argument learned counsel for the petitioner has submitted that a school is also constructed on the disputed land which is being run by the private person which is situated near by the petitioners' plot. Be that as it may be, since the dispute with regard to the school concern is not before this Court, the Court can not proceed against the said school, however in the public interest this Court directs the District Magistrate to enquire into the matter and hold an enquiry as to whether the school is situated on the State land and or on the pond. This Court further directs the District Magistrate to restore back the original land/pond, in case if he reaches to the conclusion that there was an illegal occupation/possession or construction of the school building by any private person (on a State land or Gram Sabha land or on pond).
11. Learned counsel for the petitioner has submitted that the Tehsildar has no authority under the law to consider the report of the Lekhpal. He has submitted that it is only the Assistant Collector who is empowered to consider the report of the Lekhpal under Section 66 and 67 of Revenue Code, 2006.
12. It is also submitted that the Tehsildar has considered the report of the Lekhpal and has affirmed the same namely that there is illegal possession on the pond by the petitioners.
13. In this regard the Court has noticed that the authority is put his signature at the bottom of that Form-20 and the stamp/seal of the Assistant Collector Class 1st Baheri District Bareilly is clearly pasted. Though the typed copy of the said Form-20 is enclosed but this discription of Assistant Collector Class 1st Baheri District Bareilly is not being typed. Further the photostat copy of Form-49 ka is also enclosed with Annexure 5, though does not readable, however, it is clearly noticed that the signature and seal of the Assistant Collector is put on the bottom and again this Court noticed that in the typed copy this detail has not been indicated.
14. In view of the aforesaid reasons, this Court has clearly of the opinion that there is no basis by which the petitioners can support their submissions with regard to jurisdiction of the authority and therefore, the proceedings are carried on by the competent authority.
15. By the impugned order dated 11.09.2017 the District Magistrate has held that for the same dispute namely, Gata No. 187, the present petitioners have filed a suit before the Court of Munsif Hawali Baheri District Bareilly which is said to be pending and further that from the perusal of the revenue record the land in dispute is a pond. The District Magistrate in its impugned order has considered the decision of the Hon'ble Apex Court in the case of Hinch Lal Tiwari Vs. Kamala Devi & Others, decided on 25.07.2001 reported in RD 2001 page 689, in which the Hon'ble Apex Court has held that no part of the public land or pond can be permitted to be grabed by anyone and further that in case if the public land or the pond is being illegally occupied the person who occupied the same shall immediately be removed.
16. The said proposition of the case of Hinch Lal Tiwari (supra) has been consistently followed by different High Courts and it has been held that in any case no body will be allowed to grab or occupy the State land as well as the pond.
17. In the present case it is not denied by the petitioner that the land in question is recorded as pond. The petitioners' house is adjacent at Gata No. 188 to the pond and that therein a construction over the pond is made by the petitioner as well as other private persons including the school.
18. This Court find that though the petitioner has objected about the jurisdiction of the Tehsildar but surprisingly the application which is admittedly filed by the petitioner has not been enclosed by the petitioner, by which this fact can be ascertain as to whether the petitioner has filed the said application before the Tehsildar or the same is addressed to same other authority and what objections were raised by the petitioners in their application, therefore, the objection of the petitioner has no legs.
19. This Court further noticed that in the appeal memo, filed before the District Magistrate, which is enclosed as Annexure-6 to the writ petition, in para 9 the petitioner has stated that a school is being constructed on the land in question and further that no measurement has ever been carried out.
20. It has been further mentioned that so far as the land Khasra No. 187 is concerned no measurement is being carried out and that the petitioner has not made any construction on Khasra No. 187.
21. This Court finds that on one hand the petitioner has proceeded to carry on the present proceedings and on the other hand the suit has been filed for the same claim or issue before the Court below.
22. This Court finds that the assertion made in the memo of appeal particularly in para 9 and 11 of the memo of appeal are vague in nature and do not support the contention of the petitioners.
23. As mentioned herein above, the Hon'ble Supreme Court in the case of Hinch Lal Tiwari Vs. Kamala Devi & Others (supra) has held that ponds are part of habitat of the village. The water reservoirs repeatedly encroached by the villagers, raise important environmental issues, which must be addressed by discouraging and demolishing such constructions and restoring land to the common use by the villagers.
24. In Jagpal Singh & Others Vs. State of Punjab & Others, AIR 2011 SC 1123 the Supreme Court observed in paragraphs 16, 18 and 22 as follows:-
"16. 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) 9 CTC 1 Madras) held that land recorded as a pond must not be allowed to be allotted to anybody for construction of a house or any allied purpose. The Court ordered the respondents to vacate the land they had illegally occupied, after taking away the material of the house. We pass a similar order in this case.18. 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.22. 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."
25. In this case, prima facie, I find that the petitioners have constructed some part of their house on the disputed land and the report of the Lekhpal also indicates that the construction has been made on the plot in dispute, namely, at Gata No. 187, which is a pond/ watery land, where the water is being kept for the use of villagers. It appears that the said pond is a natural pond and also that the petitioner has not demonstrated the extent of the construction or encroachment made by them.
26. The order of the Tehsildar is being challenged on the ground of the jurisdiction and the learned counsel therefore has submitted that in view of the aforesaid facts the impugned order of the Collector is also null and void.
27. Learned counsel for the petitioner has submitted that the petitioners are residing at the constructed house since last several decades. I do not find any supportive evidence or any proof with regard to the said contention of the petitioners.
28. The zamindari was abolished in the State of U.P., with the date of vesting as 1st April, 1951. It is difficult to believe that since thereafter, if there were any constructions, on the pond, they were not recorded nor any effort was made to get such old constructions, if they were really old, to be so recorded or documented at any time. On the contrary the entry of the pond on the land has continued.
29. I am of the opinion that the plea that constructions are old has been taken only to avoid the demolition of the unauthorised constructions over the pond. There is no substance in the plea.
30. Before parting with the case, I observe that the Division Bench of this Court in PIL No.63380 of 2012, Prem Singh v. State of U.P. & Ors. has also issued directions in this regard as follows:-
"After the judgement of the Supreme Court in the case of Jagpal Singh and others vs. State of Punjab and others, reported in AIR 2011 SC 1123 followed by some other judgments, upon directions of this Court, the Commissioner-cum-Secretary, Board of Revenue, U.P. Lucknow has issued a circular dated 4th October, 2012. Para-1 of that circular simply refers to certain directions of this Court in a writ petition bearing number 6472 (M/B) of 2012 (Om Prakash Verma & Others vs. State of U.P. and others) and judgements of the Apex Court including that in the case of Jagpal Singh's case (supra), but Para-2 is relevant for the purpose. The same runs as hereunder:-"इस सम्बन्ध में मुझे यह कहने का निर्देश हुआ है, कि ग्राम सभाओं की भूमि पर तालाब/पोखर/चारागाह एवं कब्रिस्तान पर अवैध कब्जा/ अतिक्रमण को हटवाने के सम्बन्ध में प्रमुख सचिव, राजस्व विभाग, उत्तर प्रदेश शासन की अध्यक्षता में बहुसदस्यीय समिति का गठन किया गया है (छाया प्रति संलग्न)। अतः अनुरोध है कि उक्त गठित समिति का प्रचार प्रसार अपने क्षेत्र के दैनिक समाचार पत्रों/केबल चैनलों पर नियमित आधार पर कराना सुनिश्चित करें, तथा अपने अपने मण्डल / जनपद के समस्त ग्राम सभाओं के सदस्यों से अवैध कब्जा / अतिक्रमण की शिकायतें प्राप्त कर समयबद्ध रूप से जाँच की कार्यवाही सुनिश्चित कर कृत कार्यवाही की प्रगति से अपने मण्डलायुक्त के माध्यम से परिषद को पाक्षिक रूप से उपलब्ध कराना सुनिश्चित करें।"We have noticed that large number of similar writ petitions are being filed only for enforcement of law laid down in the case of Jagpal Singh (supra) and some subsequent judgements.In view of direction noticed in the aforesaid circular, we are of the considered view that if complaints regarding unauthorized occupation over the public ponds or other similar public lands are received by the District Magistrate of a District, he should take all the required actions in view of law already settled in the case of Jagpal Singh and others.In case, the District Magistrate finds some good reasons to seek guidance from the Members Committee indicated in Para-2 of the aforesaid circular, then he may refer the matter and seek guidance in appropriate cases.So far as the present writ petition is concerned, we grant liberty to the petitioner to approach respondents no. 2 and 3 again with a certified copy of this order. The concerned respondents shall get appropriate inquiry made and take required action to protect public ponds as per law laid down by the Apex Court, expeditiously."
31. In this case since the authorities below have categorically recorded the finding of fact that the petitioner has approached and encroached upon the land recorded as pond, which were verified by the records, as so indicated by the report of the Lekhpal, and the findings recorded by the District Magistrate, such construction must be demolished if it is on the Gram Sabha land or on the pond and it is also directed that the pond be restored for the benefit of the villagers forthwith.
32. Let a copy of this order be furnished to the learned Standing Counsel for the State for communication to the Principal Secretary, Revenue, Government of Uttar Pradesh, who shall circulate a copy of this order to all the Divisional Commissioners as well as the District Magistrates so that number of such types of cases coming to this Court may be checked and the illegal encroachments be removed from the ponds forthwith thoroughout the State of Uttar Pradesh.
33. The writ petition is dismissed.
Order Date: 15.11.2017
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