tag:blogger.com,1999:blog-51624013281228462122024-03-10T16:27:39.952+05:30Claim for CommonsOn 28.01.2011, the Hon'ble Supreme Court of India gave a historic judgement paving the way for protection of the commons across the country. This came in connection to the hearing on the Civil Appeal No. 1132/2011 @ SLP(C) No. 3109/2011.
This blog collates all possible information related to the judgement. For views and comments write to claimforcommons@gmail.comClaim for Commonshttp://www.blogger.com/profile/06082132405339033351noreply@blogger.comBlogger796125tag:blogger.com,1999:blog-5162401328122846212.post-39391821552686745622024-01-25T11:22:00.004+05:302024-01-25T11:22:37.440+05:30Jammu & Kashmir HC: Construction of high security prison is in public interest [01.11.2023]<div style="text-align: center;">IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH</div><div style="text-align: center;">AT JAMMU</div><div style="text-align: center;">(Through VC)</div><div style="text-align: center;"><br /></div><pre id="pre_1" style="background: rgb(245, 245, 245); border-radius: 4px; border: 1px solid rgb(153, 153, 153); break-inside: avoid; color: #333333; font-family: Menlo, Monaco, Consolas, "Courier New", monospace; font-size: 13px; line-height: 1.42857; margin-bottom: 10px; margin-top: 0px; overflow-wrap: break-word; overflow: auto; padding: 9.5px; text-wrap: wrap; word-break: break-all;"> LPA No. 185/2023 CM No. 6125/2023
LPA No. 186/2023
LPA No. 187/2023
Date of Hearing: 20.10.2023
Date of Judgment: 01.11.2023
Inhabitants of Village Dambra Mahanpura Kathua ...Petitioner(s)/appellant(s)
Through: Mr. Karan Sharma, Advocate.
Vs.
UT of J&K th GAD and Ors. ...Respondent(s)
Through: Ms. Monika Kohli, Sr. AAG.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
ORDER
</pre><p data-structure="Issue" id="p_1" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Issue">01.11.2023 </p><p data-structure="Issue" id="p_1" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Issue">N. Kotiswar Singh, CJ.</p><p data-structure="Issue" id="p_2" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Issue"></p><p data-structure="Issue" id="p_3" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Issue">1. The present appeals, LPA No. 185/2023, LPA No. 186/2023 and LPA No. 187/2023 have been preferred against the common judgment and order dated 11.08.2023 passed in WP(C) No. 671/2022, WPC No. 1668/2022, and WPC NO. 269/2023 by which the learned Single Judge has dismissed all the three petitions. Accordingly, these appeals are heard together and disposed of by this common judgment.</p><p data-structure="Issue" id="p_5" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Issue">2. The three petitions were filed by the same petitioners, namely, the Inhabitants of Village Dambra, Tehsil Mahanpur, District Kathua, through their representatives, challenging the act of the State in transferring certain Shamlat Deh (Mehfooz Kacharai) land located in village Dambra, Tehsil Mahanpur, District Kathua to the Prisons Department for setting up of a High Security Prison in Dambra Village.</p><p data-structure="Facts" id="p_6" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Fact">3. The first writ petition WP(C) No. 671/2022, out of which LPA No. 185/2023 has arisen, was filed by the Inhabitants of Village Dambra, Tehsil Mahanpur, District Kathua through their representatives challenging the Order No. 36 JK(Rev) of 2022, dated 02.03.2022 issued by the Commissioner/Secretary to Revenue Department by which Shamalat Deh (Mehfooz Kacharai) falling under Khasra No. 427 min (108 Kanals 01 Marlas) and Khasra No. 486 min (39 Kanals 19 Marlas) at Village Dambra, Tehsil Mahanpur, District Kathua in favour of the Prisons Department, Jammu and Kashmir for construction of a High Security Prison, and by the same order, State land measuring 160 Kanals 04 Marlas under Khasra No. 1873 (73 Kanal 02 Marlas) Khasra No. 2597-2325 (78 Kanals) and Khasra No. 2598-2325 (09 Kanals 02 Marlas) situated at Village Dambra, Tehsil Mahanpur, District Kathua was transferred to the village Dambra to be used as Shamlat Deh (Mehfooz Kacharai).</p><p data-structure="Facts" id="p_8" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Fact">4. The said transfer order dated 02.03.2022 was preceded by identification of the land which was duly communicated by the concerned Assistant Commissioner, Kathua to the Government vide his letter under No. 502/4388/Jail/Dambra/Kth/2696 dated 29.12.2021 which was also challenged along with the aforesaid land transfer order dated 02.03.2022 in the said writ petition, WP(C) No. 671/2022.</p><p data-structure="Issue" id="p_9" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Issue">5. The second writ petition, WPC No. 1668/2022 out of which LPA No. 186/2023 has arisen, was also filed by the same petitioners, the Inhabitants of Village Dambra Tehsil Mahanpur, through their representatives seeking quashing of the Government order No. Home- 258 of 2022, dated 27.07.2022 issued by Commissioner Secretary Revenue Department, Civil Secretariat Jammu/Srinagar, by virtue of which sanction was accorded by the Government to the project of construction of High Security Prison at village Dambra. Further, the Notice Inviting Tender issued by the Executive Engineer, J&K Police Housing Corporation under e-NIT No. 26 of PHC Jammu Div/2022-23 dated 27.07.2022 for construction of the prison was also challenged.</p><p data-structure="Issue" id="p_10" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Issue">6. In the third writ petition i.e., WPC NO. 269/2023, out of which LPA No. 187/2023 has arisen was filed by the same petitioners, in which the petitioners have challenged another NIT issued by the Executive Engineer, J&K Police Housing Corporation under e-NIT No. 42 of PHC Jammu Div/2022-23 dated 12.11.2022, relating to the construction of the High Security Prison and for directing restoration due to damages caused in the village land because of the construction of the said High Security Prison.</p><p data-structure="Section" id="p_12" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Analysis of the law">7. Thus, from the above, it is evident that the three writ petitions were filed being aggrieved by the transfer for use of Shamlat Deh (Mehfooz Kacharai) land for the purpose of establishing of a High Security Prison and other connected and consequential actions i.e., notice inviting tender etc.</p><p data-structure="Precedent" id="p_13" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Precedent Analysis">8. The principal grounds taken in these writ petitions in challenging the aforesaid actions are that the respondent authorities had illegally transferred the Shamlat Deh (Mehfooz Kacharai Land) to the Prisons Department of Jammu and Kashmir (J&K) in violation of a number of judgments of the Hon'ble Supreme Court relating to protection and preservation of environment and also various orders issued in this regard by the State authorities putting a bar on transfer of Shamlat Deh (Mehfooz Kacharai) land/community land for other purposes.</p><p data-structure="Issue" id="p_14" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Issue">9. The said writ petitions came to be considered by the Ld. Single Judge on 18.08.2023 by which the said petitions were dismissed, which is challenged in this batch of letters patent appeals. On going through the impugned order dated 18.08.2023 passed by the Ld. Single Judge, it is seen that the writ petitions were dismissed by the Ld. Single Judge, as also contended before us by the ld. Counsel for the appellant petitioners, without touching on the merits of the case. These petitions were dismissed primarily because of the conduct of the petitioners, which the Ld. Single Judge found unacceptable. When the writ petitions were taken up for consideration, Ld. Govt. Counsel for the respondents, Ms. Monika Kohli, Sr. AAG brought to the notice of the Writ Court a legal notice dated 07.08.2022 issued by the petitioners, which was kept on record by the Writ Court. The said legal notice was addressed to the Chief Secretary, Government of UT of J&K, the Financial Commissioner/Additional Chief Secretary to Government of UT of J&K, and the Executive Engineer of J&K Police Housing Corporation, by which the counsel for the appellant/petitioners warned that if the ongoing construction works for the prison at the site was not stopped within two days, contempt proceedings would be initiated against them. When the Ld. Single Judge dealing with the said legal notice enquired from the counsel for the appellant petitioners, Shri Karam Sharma, as to which order of the Writ Court was violated on the basis of which the legal notice for initiating contempt proceedings was issued to the aforesaid officials, it was submitted by the counsel for the petitioner appellants that it was with reference to a decision of the Hon'ble Supreme Court rendered in Jagpal Singh &Ors. Vs. State of Punjab in Civil Appeal No. 1132/2011in which it was held that allotment of Gram Sabha land is illegal.</p><p data-structure="PetArg" id="p_16" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Petitioner's Argument"><span class="citetext" data-docid="1692607" data-sentiment="Pos" id="span_2" style="margin: 0px; padding: 0px;">10. The Ld. Single Judge took the view that if the writ petitioners in these petitions were aggrieved by any alleged violation of the order passed by the Hon'ble Supreme Court in Jagpal Singh (supra), the petitioners would be free to file appropriate contempt petition for alleged violation </span>of the judgment of the Hon'ble Supreme Court, but in the present case, since no interim order was passed by the Writ Court in any of the three writ petitions, the Ld. Single Judge deprecated the aforesaid act of the counsel for the writ petitioners which according to the Ld. Single Judge would amount to attempt to browbeat the State officials and, accordingly, Ld. Single Judge took the view that the petitions had been filed without bonafide motive and, accordingly, dismissed the writ petitions with liberty to petitioners to take recourse in the matter of contempt if the judgment of the Hon'ble Supreme Court was violated as claimed by the counsel for the petitioners appellants.</p><p data-structure="Facts" id="p_18" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Fact">11. On perusal of the impugned order dated 11.08.2023, we have also noted that the Ld. Single Judge did not dwell on the merit of the case but dismissed the writ petitions because of the aforesaid questionable conduct of the petitioners in serving notice for initiating contempt proceedings against the State officials.</p><p data-structure="Issue" id="p_19" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Issue">12. In view of above, we have allowed the learned counsel for the appellants, writ petitioners, Shri Karam Sharma, to address us also on the merit of the case, as the pleadings are otherwise complete, and the objections/affidavit in opposition filed by the respondents in all the three petitions are on record before us.</p><p data-structure="CDiscource" id="p_20" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Court's Reasoning">13. Accordingly, we have heard learned counsel for the parties on merit extensively.</p><p data-structure="PetArg" id="p_21" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Petitioner's Argument">14. Learned counsel for the appellants has challenged the aforesaid act of the official respondents in transferring the Shamlat Deh (Mehfooz Kacharai Land) to the Prisons Department principally on two grounds as discussed herein below.</p><p data-structure="Precedent" id="p_23" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Precedent Analysis"><span class="citetext" data-docid="1026316" data-sentiment="Pos" id="span_3" style="margin: 0px; padding: 0px;">15. Firstly, it has been submitted that Shamalat Deh (Mehfooz Kacharai Land) is the land which was being used by the villagers since time immemorial primarily for the purpose of grazing of cattle in the village and thus, has been kept free of constructions. It is also used for recreational activities as a playground for the villagers. It has been also contended that it's utility for maintaining ecological balance in the village surroundings also cannot be doubted as this land has also ponds and large tract of forests. Thus, if any permanent and large constructions are made on such land by destroying trees, grazing grounds, and filling up the ponds, it will disturb the environment and ecological balance in the village, which has been deprecated in a catena of decisions by the Hon'ble Supreme Court as in T.N. Godavarman Thirumulpad (87) v. Union of India, (2006) 1 SCC 1 in which it was observed that natural resources are the assets of the entire nation and it is the obligation of all concerned, including the Union Government and State Governments to conserve, and not waste these resources. Article 48-A of the Constitution requires that the State shall endeavour to protect and improve the environment and to safeguard the forest and wildlife of the country. Under Article 51-A, it is the duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures.</span></p><p data-structure="Issue" id="p_24" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Issue">Intellectual Forum, Tirupathy vs State of AP, (2006) 3 SCC 549 was also relied upon wherein it was observed that temple tanks maintain environment of surrounding areas and these are communal property and the state authorities are their trustees to hold and manage such properties for the benefit of the community and the State authorities should not be allowed to commit any act or omission which will infringe upon the right of the community to enjoy the property.</p><p data-structure="Precedent" id="p_26" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Precedent Analysis">In the case of Rameshbhai Virabhai Chaudhari Vs. State of Gujarat (Civil Appeal No. 5135 of 2021), which was also relied upon by the appellants, the Hon'ble Supreme Court held that it is trite to say that Kahcharai land can be used only for purposes for which it is permitted to be used and if there is a user contrary to the permissible user, whether by the State or by any third party, the same cannot go on.</p><p data-structure="Precedent" id="p_27" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Precedent Analysis">The appellants also referred to M.I. Builders (P) Ltd. Vs. Radhey Sham Sahu (1996) 6 SCC 464, in which the Hon'ble Supreme Court ordered restoration of a park after demolition of a shopping complex constructed at the cost of over hundreds of crores of rupees.</p><p data-structure="Precedent" id="p_28" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Precedent Analysis"><b><span class="citetext" data-docid="1692607" data-sentiment="PARTY" id="span_5" style="margin: 0px; padding: 0px;">In Jagpal Singh v. State of Punjab (2011) 11 SCC 396 heavily relied upon by the appellants, it has been held by the Hon'ble Supreme Court that 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 (Mehfooz Kacharai) (in Punjab, etc.</span>), 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 and also others like ponds were used for various purposes e.g. for their cattle to drink and bathe. These lands are also used 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 and they were generally treated as inalienable in order that their status as community land be preserved. The Hon'ble Supreme Court also noted that there can be no doubt that there are some exceptions to this rule which permitted the Gram Sabha/Gram Panchayat to lease out some of these land to landless labourers and members of the Scheduled Castes/Tribes, but this was only to be done in exceptional cases.</b></p><p data-structure="PetArg" id="p_30" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Petitioner's Argument">16. Secondly, it was contended on behalf of the appellants that the transfer of the Shamlat Deh (Mehfooz Kahcharai Land) to the Prisons Department is plainly in contravention of the Government Circular No. FC-LS/Misc- 3744/2010 dated 09.12.2010 which deals with the acquisition/transfer/ allotment of Kahcharai land in which it has been specifically mentioned that frequently cases have been put up for recommendation for acquisition/transfer/allotment of Kahcharai land instead of State land, which should be the first priority. Under the second paragraph of the said Circular dated 09.12.2018, it has been stated that Kahcharai land being under the collective ownership of the local community, reserved for grazing purpose, should be left free for use for the purpose it has been reserved for. The said Circular further enjoined upon all the subordinate revenue officers not to process cases regarding the allotment or transfer of Kahcharai land in future. The said Circular was issued in terms of the advice received from the Administrative Department, vide no. Rev/S/123/2010, dated 12.08.2010.</p><p data-structure="RespArg" id="p_32" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Respondent's Argument">It has been accordingly, submitted that the transfer of the aforesaid land to the Prisons Department by the impugned order dated 02.03.2022 issued by the Commissioner/Secretary to Revenue Department is plainly against the aforesaid Circular issued by the same Revenue Department. It has been submitted that the aforesaid land is a protected land, used as a grazing land for the villages and for recreational activities of the youth of the villages which contain ponds and temples, which requires to be preserved and should not be used for any other purpose other than for grazing purpose.</p><p data-structure="RespArg" id="p_33" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Respondent's Argument">17. It has been submitted that the appellants have learnt as per information received from the authorities through applications filed under the Right to Information Act, 2005 that though there are 2018 Kanals and 06 Marlas of State land available in the village Dambra, yet there is no finding by the respondent authorities that no other alternative land is available in the village nor in any part of the UT of Jammu and Kashmir and as such, if Kahcharai land is used instead of State land which is 10 | P a g e abundantly available for construction of prison, the impugned order will be plainly contrary to the aforesaid decision of the of the Government as reflected in the Circular/Order dated 02.03.2022 issued by the Commissioner/Secretary to Revenue Department.</p><p data-structure="CDiscource" id="p_34" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Court's Reasoning">18. The appellants also claim that the Deputy Commissioner, Kathua had written to the Divisional Commissioner on 12.11.2021 that it had been reported that the land selected for the construction of High Security Prison is located far away about 50-55 kms. away from the District Court Complex, District Police Lines and Government Medical College and in view of the prevailing security scenario in the Jammu &Kashmir with past incidents of militant attacks, escaping of prisoners during transit time, to and fro the court after court hearing and for special medical treatment of the prisoners outside the jail hospital, the identified location is not suitable for the said purpose. It was also mentioned that the Inspector General, Prisons also had pointed out certain drawbacks about the said proposed site and requested for identifying land near the District Headquarter of Kathua. Thus, it was contended that when an important functionary like Inspector General of Prisons had expressed doubts about the efficacy of establishing the prison at the said location, it was unwise and undesirable on the part of the Government to proceed with the said project in the village of Dambra.</p><p data-structure="Precedent" id="p_35" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Precedent Analysis"><span class="citetext" data-docid="4182371" data-sentiment="Pos" id="span_6" style="margin: 0px; padding: 0px;">19. It has been also contended by the Ld. Counsel for the appellants that on an earlier occasion, the Office of the Assistant Collector, Kishtwar had issued an order on 15.02.2020 for eviction of unlawful encroachers from State/Kahcharai/Common/Forest Land in terms of directions issued by the Supreme Court in Jagpal Singh case and by this Court in PIL No. 19/2021 titled "SK Bhalla vs. State of J&K and others", Circular issued by the Financial Commissioner vide No. FC-LS/Misc-3744/2010 dated 09.12.2010 <a href="https://indiankanoon.org/doc/4182371/" id="a_11" style="color: #1100cc; margin: 0px; padding: 0px; text-decoration-line: none;">(</a>referred to above), and other decisions of this Court which clearly underline the fact that Kahcharai Land is to be fully protected from unauthorized use and encroachment and the aforesaid action of the Government will be also applicable in the present case as the Kahcharai Land is sought to be used for some other purpose for which is not intended to be used.</span></p><p data-structure="Precedent" id="p_36" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Precedent Analysis">20. The respondent authorities contested all these petitions by filing objections. Ms. Monika Kohli, Sr. AAG, submitting on behalf of the respondents contends that all the decisions of the Hon'ble Supreme Court relied upon by the appellants relate to illegal encroachment of public land/community land. But in the present case, the land had been utilized after being transferred by following proper procedure and after being approved by the competent authority and it is not a case of illegal occupation. As such, these judgments are not applicable in the present case.</p><p data-structure="Precedent" id="p_37" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Precedent Analysis">21. It has been also submitted by Ms. Monika Kohli, Sr. AAG, on behalf of the respondents that construction of High Security Prison at village Dambra, Kathua District does not pose any threat to the environment, natural resources, as well as the ecosystem. Further, in lieu of the Shamalat Deh (Mehfooz Kahcharai) land measuring 148 Kanals 04 12 | P a g e Marlas transferred to the Prisons Department, State land measuring 160 Kanals 04Marlas situated in the same village had been transferred to the village to be utilized as Shamalat Deh (Mehfooz Kahcharai). Thus, the village is adequately compensated by transfer of State land.</p><p data-structure="Precedent" id="p_38" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Precedent Analysis">22. It has been further submitted that at present there are 1218 Kanals and 04 Marlas of Shamalat land available in Dambra village, of which 148 Kanal of land were transferred to the Prison Department, in lieu of which the Government transferred 160 Kanals and 04 Marlas of State land to the village. Thus, at present, the village of Dambra has got 1230 Kanals and 8 Marlas of Kahcharai land available with it. Thus, the village possesses more than adequate Kahcharai land at their disposal.</p><p data-structure="PetArg" id="p_39" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Petitioner's Argument">23. It had been further submitted that in the process of use of the aforesaid Kahcharai land, no pond, water bodies or temple were damaged, since no such structure existed over the said transferred land and as such the allegations made by the appellants are false.</p><p data-structure="PetArg" id="p_40" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Petitioner's Argument">24. It has been submitted that pursuant to a meeting taken in the Ministry of the Home Affairs on 06.07.2021 regarding construction of a High Security Prison in Kathua, in J&K, the Prisons Department requested the Deputy Commissioner, Kathua for identification of a government land. Accordingly, the Deputy Commissioner, Kathua identified 148 kanals of village land at Dambra and the same was submitted to the revenue authorities. Necessary layout plan for the prison was prepared by the Police Housing Corporation, which was duly approved by the Ministry of Home Affairs vide Order no. 13030/45/2021-S(JKL), dated 13 | P a g e 19.01.2022. It was also contended that the Revenue Department, Government of Jammu and Kashmir, had accorded sanction and transferred the said identified land measuring 148 Kanals 04 Marlas to the Prisons Department for the purpose of construction of the High Security Prison vide Government order No. 36-JK (Rev) of 2022 dated 02.03.2022. Subsequently, Mutation No. 1901, dated 16.03.2022 was attested in favour of the Prisons Department. All these acts were duly approved by the Administrative Council.</p><p data-structure="CDiscource" id="p_41" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Court's Reasoning">25. Heard the Learned Counsel for the parties and perused the records.</p><p data-structure="Section" id="p_42" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Analysis of the law">26. Before we examine the applicability of the various decisions of the Hon'ble Supreme Court cited by the learned counsel for the appellants in support of their plea that the transfer of the Kahcharai land for the use of construction of High Security Prison in the village is against the directions of the Hon'ble Supreme Court, we would like to examine whether the process of transfer of the land was done in violation of any of the existing rules or orders issued by the Government of UT of JK in that regard.</p><p data-structure="PetArg" id="p_43" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Petitioner's Argument">27. The impugned transfer of the land vide order dated 02.03.2022 was issued by the Commissioner/Secretary to the Government, Revenue Department. The appellants/writ petitioners also had relied on a Government Order No. 30-Rev(S) of 2019 dated 05.03.2019 wherein it has been provided that proposals regarding transfer of state/departmental land for various public purposes shall be processed for consideration by the authorities in the manner mentioned therein. In the said order dated 14 | P a g e 05.03.2019 it has been mentioned that the Government in the Revenue Department shall be the competent authority to decide cases relating to transfer of state/departmental land exceeding 100 Kanals and up to 500 Kanals (free from encumbrances) to the State Government Departments for public purposes/departmental programmes.</p><p data-structure="CDiscource" id="p_44" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Court's Reasoning">28. In the present case, the order dated 02.03.2022 by which the land was transferred to the Prisons Department measuring 148 Kanals under Khasra No. 427 min (108 Kanals 01 Marlas) and Khasra No. 486 min (39 Kanals 19 Marlas) was issued by the Commissioner/Secretary, Revenue Department, and as such, the said transfer order dated 02.03.2022 was issued by the competent authority i.e., the Government, as provided under Government Order dated 05.03.2019. Hence, there was no violation of any order of the Government as regards the authority which transferred the land.</p><p data-structure="Precedent" id="p_45" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Precedent Analysis">29. The impugned order of transfer of land dated 05.03.2019 also makes a reference to the decision of the Administrative Council dated 23.02.2022. Thus, it is evident that the said transfer of land had the approval of the Administrative Council of the Government of Jammu &Kashmir. It may be noted that after the enactment and implementation of the Jammu and Kashmir Re-organization Act, 2019, and creation of the UT of Jammu & Kashmir, the Lieutenant Governor of the UT is responsible for the administration of the UT of Jammu & Kashmir. It has been provided under Section 14 of the Re-organization Act, 2019 that there shall be an Administrator appointed under Article 239 of the Constitution of India for the Union Territory of Jammu and Kashmir and shall be designated as Lieutenant (Lt.) Governor of the UT. Section 14 also provides for a Legislative Assembly. However, in absence of the Legislative Assembly, the Lt. Governor is primarily responsible for the administration of the UT for which the Lt. Governor issued an order creating an Administrative Council with the Lt. Governor as the Chairman and his Advisors as Members to dispose of cases mentioned in the "Second Schedule" to the Re-organization Act, 2019 involving legislation, including the issue of ordinances, proposals to summon or prorogue or dissolve the legislature of the State, address of the Lt. Governor to the legislature etc., or such matters as the Lt. Governor may direct to be placed before it, and the Chief Secretary is the Secretary to the Administrative Council. Thus, the Administrative Council takes all important policy decisions in the UT of Jammu and Kashmir.</p><p data-structure="Precedent" id="p_46" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Precedent Analysis">30. Accordingly, if the aforesaid transfer of land by the Commissioner, Revenue Department to the Prisons Department was approved by the Administrative Council, the highest decision making authority in the UT, the Circular/Order issued by the Revenue Department on taken 05.03.2019 cannot come in the way of such decision taken by the Administrative Council. Further, we also agree with the submission advanced on behalf of the respondents that the transfer of land to the Prisons Department was to achieve certain public purpose, that is, to establish a High Security Prison which in our view, cannot be questioned or subjected to judicial review considering that it was a policy decision of the Government to establish such a prison in view of the prevailing situation in the UT of Jammu & Kashmir, which is afflicted by terrorist activities which are abated by inimical foreign forces and agencies. As also submitted by Ms. Monika Kohli, Sr. AAG, relying on the decision of the Hon'ble Supreme Court in Devendra Singh versus State of UP (Civil Appeal No.6293 OF 2011) decided on 03.08.2011, that it cannot be said that construction of a Jail does not serve public purpose.</p><p data-structure="CDiscource" id="p_47" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Court's Reasoning">31. We have also noted that in lieu of the land which have been taken from the village for the purpose of construction of the High Security Prison, proportionate State land had been transferred to the village to be utilized as Shamalat Deh (Mehfooz Kahcharai) land, thus the village has been adequately compensated.</p><p data-structure="CDiscource" id="p_48" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Court's Reasoning">32. We also have noted that there are sufficient Shamalat Deh (Mehfooz Kahcharai) land already available with the village. As per the records, after the transfer of the State land measuring 160 Kanals and 04 Marlas, there are altogether 1230 Kanals and 08 Marlas of Shamalat Kahacharai land available with the villagers of Dambra. Thus, it cannot be said by any stretch of imagination that the villagers are prejudiced in any manner by the transfer of the aforesaid land to the Prisons Department.</p><p data-structure="Section" id="p_49" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Analysis of the law">33. Nothing thus, has been brought to our notice about violation of any particular rule or statute in the aforesaid act of transfer of land. The aforesaid transfer of land was executed with due approval of the competent authorities, i.e., the Revenue Department and Administrative Council.</p><p data-structure="Precedent" id="p_50" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Precedent Analysis">34. Under the circumstances, we are not able to subscribe to the submission advanced on behalf of the appellants that the transfer of the Shamalat Kahcharai land to the Prisons Department for the purpose of construction of High Security Prison is illegal, and in violation of the orders and rules applicable in the UT of Jammu and Kashmir.</p><p data-structure="PetArg" id="p_53" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Petitioner's Argument">35. Having satisfied that the transfer of Shamalat Deh (Mehfooz Kahcharai) land to the Prisons Department does not violate or contravene any of the extant orders or rules in this regard, we would proceed to examine whether such transfer amounts to violation of any direction or order of the Hon'ble Supreme Court as contended by the Ld. Counsel for the appellants.</p><p data-structure="Precedent" id="p_54" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Precedent Analysis"><span class="citetext" data-docid="1026316" data-sentiment="Pos" id="span_8" style="margin: 0px; padding: 0px;">36. Mr. Karan Sharma Ld. Counsel for the appellants had placed reliance on the decision of the Hon'ble Supreme Court in T.N. Godavarman Thirumulpad (supra) which deals extensively with sustainable development and need for protection of environment by observing that derivation of economic benefit must be subordinated to ensure environmental stability and maintenance of equally ecological balance and non fulfillment of this principle would be violative of Articles 14 and 21 of the Constitution. It was also observed that economic development at the cost of degradation of environment and depletion of forest cover would not be long lasting and as such, development would be counter productive. The Hon'ble Supreme Court was also concerned with the dwindling forest cover in India and emphasized the need for overall development and systematic approach. While there cannot be any difference of opinion about such observations made by the Hon'ble Supreme Court for protection of forest and preservation of environment for sustainable development, it may be noted that Hon'ble Supreme Court has not placed any blanket ban on the use of forest land. In any event, in the present case, the land in issue does not come under forest area, but it is essentially a grazing ground as also contended by the appellants. Further, the transfer of the land to the Prisons Department is also for a specific public purpose which was done by the competent authority.</span></p><p data-structure="Precedent" id="p_55" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Precedent Analysis">37. Much emphasis had been laid on the decision of the Hon'ble Supreme Court in Rameshbahi Virabhai Chaudhary (supra) by picking out a particular paragraph in the said decision in which it has been observed that Kahcharai land can be used only for the purpose for which it is permitted to be used and if there is a user contrary to the permissible user, whether by the state or by any third party, the same cannot go on. It is to be noted that the said observation was made in the context of the facts involved in the said case, that is, encroachment in the village Kahcharai land by 72 persons by constructing residential houses. A plea was taken that some of the encroachers belong to Scheduled Castes and Scheduled Tribes and socially, economically backward classes and they had been in occupation for a long period, and they could not have been evicted without providing alternative accommodation. The Hon'ble Supreme Court after examining the facts of the case, observed that only three persons were entitled to alternative accommodation as others were 19 | P a g e having the alternative accommodation. It was in that context that the aforesaid observation was made by the Hon'ble Supreme Court. Hence, in our opinion, the said case dealing with encroachment will not be also applicable in the present case.</p><p data-structure="Precedent" id="p_56" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Precedent Analysis"><b>38. <span class="citetext" data-docid="1692607" data-sentiment="Pos" id="span_9" style="margin: 0px; padding: 0px;">In Jagpal Singh's case, the Hon'ble Supreme Court was dealing with a case of large-scale encroachment of a village Gram Panchayat land and the encroachers were claiming regularization of such encroachment on the plea of long occupation. The Hon'ble Supreme Court noted with disdain the complicity of the administration in allowing unauthorized encroachment and also in directing regularization of encroached land by recovering the cost of the land on the plea that huge amounts had been spent by the encroachers on the encroached land. In that context, it was observed by the Hon'ble Supreme Court that the common interest of villagers should not be allowed to suffer merely because unauthorized occupation had been subsisting for many years, and accordingly, directed removal of the construction and restoration of possession of the village land to the Gram Panchayat. In that context, the aforesaid observations were made and directions were issued to all the state Governments to prepare schemes for eviction of illegal, unauthorized occupants of Gram Sabha, Gram Panchayat, Porambakkam, Shamlat land. In the present case, no encroachment of village land is involved but it is a case where the state authorities had transferred Shamalat Deh (Mehfooz Kahcharai) land to the Prisons Department after following due process and after being approved by the competent authority for a public purpose and as such, in our view the aforesaid observations of the Hon'ble Supreme Court cannot come in the way of the transfer of land in the present case.</span></b></p><p data-structure="Conclusion" id="p_57" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Conclusion">39. Construction of a High Security Prison in the UT of Jammu and Kashmir is the need of the hour in view of the prevailing situation in the UT, which is afflicted by violence and terrorism sponsored by inimical force from across the border, which obviously would entail and involve detention of high value prisoners who would be required to be kept in very secure prisons. Thus, the construction of a High Security Prison is not only in public interest, but would subserve the interest and security of the nation.</p><p data-structure="Precedent" id="p_58" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Precedent Analysis">40. We also have noted that the construction of this High Security Prison does not totally obliterate the grazing grounds of the village or the Shamalat Deh (Mehfooz Kahcharai) land available in the village. In fact, as discussed above, there are sufficient and large areas of Shamalat Deh (Mehfooz Kahcharai) land already still existing in the village. Further, the village had been adequately compensated by transfer of State land to the village to be utilized as Shamalat Deh (Mehfooz Kahcharai) land by the villagers.</p><p data-structure="Precedent" id="p_59" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Precedent Analysis">41. Thus, keeping the public interest involved in the construction of the High Security Prison which is necessary for the security of the nation, we are of the view that the decisions of the Hon'ble Supreme Court cited by the Ld. Counsel for the appellants are not applicable in the present case. In our opinion, the aforesaid decisions could not be invoked to come in the way of an important project required in public interest and for the security of the Nation.</p><p data-structure="Precedent" id="p_60" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Precedent Analysis">42. It has been also brought to our notice by the Ld. Sr. AAG for the respondents that earlier, this Court had the occasions to deal with similar issues of transfer of Shamlat Deh (Mehfooz Kacharai) land for construction of government institutions and this Court had allowed such transfers for public purposes by drawing our attention to the decision in Villagers of Anzwalla Versus State Of J&K & Ors. 2012 (3) JKJ[HC]</p><p data-structure="Conclusion" id="p_61" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Conclusion">213. We have perused the aforesaid judgment.</p><p data-structure="Precedent" id="p_62" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Precedent Analysis">43. We are of the view that there are precedents in the past where Shamalat Deh (Kahcharai) land had been allowed to be transferred for construction of public institutions and for public purposes. In the said case of Villagers of Anzwala (supra) the petitioners therein had filed the writ petition questioning the transfer of certain Shamalat Deh land to the Health Department for construction of Primary Health Centre. It was contended by the petitioners therein that the land is "Mehfooz Kahcharai Land" and is reserved for grazing purposes and hence, cannot be utilized for any other purpose. The said contention was resisted by the State taking the plea that it was necessary for providing better health care facilities to the public in general, and, more particularly to the rural population of the area. It was held by this Court that Kahcharai land is the property of the Government and villagers have no individual rights on the said land and in view of the interests of the public in general, the Government was within its powers to transfer the Kahcharai land in question for the aforesaid public purpose. It was thus observed as follows:</p><p data-structure="Precedent" id="p_62" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Precedent Analysis">"5. It is settled position of law that Kahcharai Land is the property of the Government, hence, the villagers had no individual rights or interest on the said land. The Government is within its powers to acquire it, when the same is for the public purpose, more so, when the amount of compensation on account of the land in question will be utilized by transferring the same to the village Panchayat in terms of Cabinet Decision No. 355 dated 27.03.1979 read with Government Order No. Rev (LAK) 275 of 1979 dated 28.09.1979. A plain reading of the provisions of the Land Acquisition Act and the Government order aforementioned, clearly establishes that the Kahcharai Land can be utilized for the public purpose, when alternate and suitable land is not available.</p><p data-structure="Precedent" id="p_62" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Precedent Analysis">6. This Court in case Habibullah Sheikh v. State of J&K, 2009 (1) SLJ 150, 2008 (3) JKJ 170[HC], incidentally of which I am the author, has held that Kahcharai Land can be acquired for public purpose and the amount of compensation in lieu thereof is payable to the concerned Panchayat, in whose jurisdiction land falls, to be spent for welfare of the community of the area in question. It would be apposite to reproduce the paragraphs 5 and 6 of the judgement, which read as follows:</p><p data-structure="Precedent" id="p_62" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Precedent Analysis">"5. The petitioners have no right or interest over the said land. It is virtually a property of the government but meant for grazing purposes. If Kahcharai land is to be acquired for any public purpose the amount is to be spent for welfare of the community. Division Bench of this Court in case titled [1]Gh. Mohammad Bhat & Others v. State and Anr. reported as SLJ 1981 J&K 254 has held that if Kahcharai land is acquired, the compensation is payable to the concerned Panchayat in whose jurisdiction land falls. It is the property of the community.</p><p data-structure="Precedent" id="p_62" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Precedent Analysis">6. If Kahcharai land is acquired, the petitioners have no right to challenge the same. However, the compensation amount is to be utilized for the benefit of the villagers. The villagers are not before the Court. The writ petitioners have filed writ petition in individual capacity. The electric department has specifically averred that land came to be acquired for the purposes of construction of Grid Station for public purpose. The petitioners cannot seek any relief against the respondents-Electric Department"<span style="background-color: transparent;"> </span></p><p data-structure="Precedent" id="p_62" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Precedent Analysis">44. We are of the view that the aforesaid decision of this Court in Villagers of Anzwalla (supra) will be squally applicable in the present case.</p><p data-structure="Precedent" id="p_62" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Precedent Analysis">45. The appellants/villagers of Dambra may have a right to enjoy the Samalat Deh (Mehfooz Kahcharai) land in the village, yet it cannot be said that the land belongs to them. The State is ultimately the custodian of such a land as a trustee for such land to be used by the villagers for their benefit. It cannot be said that the villagers are the owners of the Shamalat Deh (Mehfooz Kahcharai) land. Thus, if such land is utilized for a public purposes, it cannot be said that the legal rights of the villages are infringed.</p><p data-structure="Precedent" id="p_62" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Precedent Analysis">46. We are, thus, satisfied that the transfer of Shamalat Deh (Mehfooz Kahchari) land by the State vide order dated 02.03.2022 is valid. Hence, the subsequent acts of the authority in issuing NIT and constructions made on the transferred land do not warrant interference from our end.</p><p data-structure="Precedent" id="p_62" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Precedent Analysis">47. Under the circumstances, after hearing the parties and on perusal of the record and for the reasons discussed above, we are of the opinion that there is no merit in these writ petitions as well as in these appeals and accordingly, the appeals deserve to be dismissed as being devoid of merit.</p><p data-structure="Precedent" id="p_62" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Precedent Analysis">48. We, however, have not examined the correctness or otherwise of the reason given by the Ld. Single Judge in dismissing the writ petitions on the ground of lack of bona fide of the petitioners in filing the writ petitions, as the appeals have been dismissed after considering merit in these appeals.</p><p data-structure="Conclusion" id="p_65" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Conclusion">49. Consequently, all the appeals LPA No. 185/2023, LPA No. 186/2023 and LPA No. 187/2023 are dismissed.</p><p data-structure="Conclusion" id="p_66" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Conclusion">50. Registry to place a copy of this order in each file.</p><br /><br /><br /> (MOKSHA KHAJURIA KAZMI)<span> </span><span> </span><span> </span><span> </span><span> </span> (N. KOTISWAR SINGH)<br /> <span> </span><span> </span><span> </span><span> </span><span> </span>JUDGE <span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span>CHIEF JUSTICE<br /><br />SRINAGAR<br /><br />01.11.2023Claim for Commonshttp://www.blogger.com/profile/06082132405339033351noreply@blogger.com0tag:blogger.com,1999:blog-5162401328122846212.post-56238491428705805932024-01-25T11:11:00.002+05:302024-01-25T11:11:31.612+05:30Gauhati HC in Tetlirtol Unnayan Samiti & Ors. vs. State of Assam [06.11.2023]<div style="text-align: center;">THE GAUHATI HIGH COURT</div><div style="text-align: center;">(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)</div><div style="text-align: center;"><br /></div>Case No. : WP(C)/23/2015<div><br /><pre id="pre_1" style="background: rgb(245, 245, 245); border-radius: 4px; border: 1px solid rgb(153, 153, 153); break-inside: avoid; color: #333333; font-family: Menlo, Monaco, Consolas, "Courier New", monospace; font-size: 13px; line-height: 1.42857; margin-bottom: 10px; margin-top: 0px; overflow-wrap: break-word; overflow: auto; padding: 9.5px; text-wrap: wrap; word-break: break-all;">TETLIRTOL UNNAYAN SAMITI and 12 ORS
REP. HEREIN BY ITS PRESIDENT MD. MONOWAR HUSSAIN HAVING ITS
OFFICE AT VILLAGE TETELIRTOL, MOUZA- JANIA DIST. BARPETA,
ASSAM.
2: MONOWAR HUSSAIN
S/O MD. SANU KHAN R/O VILL- TETLIRTAL
MOUZA- JANIA DIST. BARPETA
ASSAM.
3: BAHAZ UDDIN
S/O NAYEJ UDDIN R/O VILL- TETLIRTAL
MOUZA- JANIA DIST. BARPETA
ASSAM.
4: ABBAS ALI
S/O IMAM ALI R/O VILL- TETLIRTAL
MOUZA- JANIA DIST. BARPETA
ASSAM.
5: ABDUL MAZID
S/O ABDUL GONI R/O VILL- TETLIRTAL
MOUZA- JANIA DIST. BARPETA
ASSAM.
6: JAHIDUL ISLAM
S/O MANDAJ ALI R/O VILL- TETLIRTAL
MOUZA- JANIA DIST. BARPETA
ASSAM.
7: BASER ALI
S/O BAHAJ UDDIN R/O VILL- TETLIRTAL
MOUZA- JANIA DIST. BARPETA
ASSAM.
8: UHAR ALI
S/O IMAM ALI R/O VILL- TETLIRTAL
MOUZA- JANIA DIST. BARPETA
ASSAM.
9: IDRISH ALI
S/O AANJU MIA R/O VILL- TETLIRTAL
MOUZA- JANIA DIST. BARPETA
ASSAM.
10: RAIMAN NESSA
C/O KANTU SIKDAR R/O VILL- TETLIRTAL
MOUZA- JANIA DIST. BARPETA
ASSAM.
11: ABJAL KHAN
S/O USMAN ALI R/O VILL- TETLIRTAL
MOUZA- JANIA DIST. BARPETA
ASSAM.
12: ABDUL KHALEQUE
S/O RUSTAM ALI R/O VILL- TETLIRTAL
MOUZA- JANIA DIST. BARPETA
ASSAM.
13: RASEDA BEGUM
W/O RAMJAN ALI R/O VILL- TETLIRTAL
MOUZA- JANIA DIST. BARPETA
ASSAM
VERSUS
THE STATE OF ASSAM AND 3 ORS
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
REVENUE REHABILITATION AND DISASTER MANAGEMENT
DEPARTMENT, SACHIVALAYA, GUWAHATI- 781006.
2:THE DEPUTY COMMISSIONER
BARPETA DISTRICT
BARPETA
ASSAM.
3:ADDITIONAL DEPUTY
COMMISSIONER
BARPETA
DIST. BARPETA
ASSAM.
4:THE CIRCLE OFFICER
BAGHBAR REVENUE CIRCLE
BAGHBAR DIST. BARPETA
ASSAM
For the Petitioner (s) : Mr. B.D. Goswami, Advocate.
Mr. J.M. Gogoi, Advocate.
For the Respondent (s) : Mr. N. Goswami, Advocate.
<div style="text-align: center;">HONOURABLE MR. JUSTICE DEVASHIS BARUAH</div><div style="text-align: center;">BEFORE</div></pre><p data-structure="CDiscource" id="p_1" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px; text-align: center;" title="Court's Reasoning">Order</p><p data-structure="CDiscource" id="p_1" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Court's Reasoning">06.11.2023 </p><p data-structure="CDiscource" id="p_1" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Court's Reasoning">The instant writ petition has been filed by 13 Petitioners being aggrieved by the notices issued to evict the Petitioner Nos. 2 to 13 by the Circle Officer, Baghbar Revenue Circle dated 30.12.2014 in respect to Encroachment Case No. 4/2006-07.</p><p data-structure="PetArg" id="p_2" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Petitioner's Argument">2. It is the case of the Petitioners herein that the Petitioners are river erosion affected persons and they are entitled to settlement over the land under their possession and as such the Petitioners have approached this Court challenging the said notices.</p><p data-structure="PetArg" id="p_3" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Petitioner's Argument"><span class="citetext" data-docid="1692607" data-sentiment="Pos" id="span_1" style="margin: 0px; padding: 0px;">3. Mr. N. Goswami, the learned counsel appearing on behalf of the Respondent Nos. 2, 3 & 4 submits that as per the Government Land Policy of 2019 as well as also the judgment of the Supreme Court in the case of Jagpal Singh vs. State of Punjab reported in (2011) 11 SCC 396, the question of settlement of the Petitioners over the said lands does not arise inasmuch as those lands have been specifically earmarked as village grazing reserve.</span></p><p data-structure="PetArg" id="p_4" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Petitioner's Argument"><span class="citetext" data-docid="1692607" data-sentiment="Pos" id="span_2" style="margin: 0px; padding: 0px;">4. Mr. B.D. Goswami, the learned counsel appearing on behalf of the Petitioners submits that although the Petitioners may not have a right to get the settlement over the lands presently under their possession in view of the well settled principles of law laid down in the case of Jagpal Singh (supra), but the Petitioners being erosion affected persons are entitled to settlement of Govt. waste lands, to which the Petitioners may be given the liberty to file individual applications within a stipulated time and the Petitioners should not be disturbed till such applications are disposed of.</span></p><p data-structure="CDiscource" id="p_5" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Court's Reasoning">5. After hearing the learned counsels for the parties, this Court is of the opinion that the question of interference with the notices impugned in the instant proceedings does not arise inasmuch as the Petitioners herein have no right to remain in possession or even get settlement of the lands which have been specifically earmarked for village grazing reserve. Be that as it may, the materials on record clearly show that the Petitioners are erosion affected persons and as such would be entitled as per Government Land Policy of 2019 for seeking allotment/settlement of Government waste lands provided they meet the eligibility.</p><p data-structure="Conclusion" id="p_6" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Conclusion">6. Accordingly, this Court therefore disposes of the instant writ petition thereby granting liberty to the Petitioners herein to file individual applications before the District Commissioner, Barpeta within 30 days from the date of the instant order as per the provisions of the Government Land Policy of 2019. The Respondent Authorities as well as the Revenue Department of the Government of Assam shall duly consider such applications as per the extant Land Policy. It is further made clear that till the said applications are not disposed, the Respondent Authorities shall not disturb the possession of the Petitioners over the lands in question.</p><p data-structure="Conclusion" id="p_7" style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16px; margin: 0px; padding: 10px 0px 0px;" title="Conclusion">7. With the above observations and directions, the instant writ petition stands disposed of.</p></div>Claim for Commonshttp://www.blogger.com/profile/06082132405339033351noreply@blogger.com0tag:blogger.com,1999:blog-5162401328122846212.post-83053948015992005942023-08-06T22:08:00.002+05:302023-08-06T22:09:14.101+05:30Punjab & Haryana HC in Harnek Singh vs. State of Punjab [02.06.2023]<div style="text-align: justify;">Neutral Citation No:=2023:PHHC:080920-DB </div><div style="text-align: justify;"><br /></div><div style="text-align: center;">IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH </div><div style="text-align: center;">CWP-22863-2021 </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Date of decision : 02.06.2023 </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">HARNEK SINGH <span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> <span> </span><span> </span><span> </span><span> </span><span> </span> </span>-PETITIONER </div><div style="text-align: center;">VERSUS </div><div style="text-align: justify;">STATE OF PUNJAB AND ORS. <span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> <span> </span><span> </span><span> </span><span> </span> </span>-RESPONDENTS </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR </div><div style="text-align: justify;"><span> </span><span> </span><span> </span><span> </span>HON'BLE MR. JUSTICE KULDEEP TIWARI </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Present: Mr. Rai Singh Chauhan, Advocate with </div><div style="text-align: justify;">Mr. Rohit Sapehiya, Advocate and </div><div style="text-align: justify;">Ms. Deepika Chauhan, Advocate
for the petitioner. </div><div style="text-align: justify;">Ms. Monika Jalota, Sr. DAG, Punjab. </div><div style="text-align: justify;">Mr. B.S. Ichhewal, Advocate
for the respondent No.8. </div><div style="text-align: justify;"><br /></div><div style="text-align: center;">*** </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">KULDEEP TIWARI, J.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">1. Through the instant writ petition, the petitioner has sought the issuance of a mandamus upon the official respondent(s) concerned, to consider the grievance of the petitioner, as carried in the representation dated 13.08.2021 (Annexure P-5), and, also to conduct an inquiry in terms of the directions, as carried in Annexure P-6, issued by the respondent No.2, on the premise that the Sarpanch of the Gram Panchayat concerned (respondent No.9), has constructed a community hall over the disputed pond (Chappar) in Village Badial by filling it with sand, which exists for the last more than 50 years and was used for common purposes by the inhabitants of the village concerned.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">2. By placing reliance upon the judgment passed by the Hon'ble Supreme Court, in case titled "Jagpal Singh and others V/s State of Punjab and others", 2011(1) ICC 742, the learned counsel for the petitioner has argued that the factual matrix of the present case causes breach of the directions, as laid down by the Hon'ble Supreme Court in the case (supra), therefore, he has sought the indulgence of this Court, to take stern action against the private respondent No.9 and has also sought the restoration of the disputed pond to its original condition.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">3. This Court, while issuing notice of motion in the present case, had passed the hereinafter extracted order:-</div><div style="text-align: justify;">"The petitioner has approached this Court praying for a writ of mandamus directing the respondents to consider the grievance of the petitioner as highlighted in the representation dated 13.08.2021 (Annexure P-5), whereby the Deputy Commissioner, Hoshiarpur was called upon to look into the matter with regard to the encroachment on the Pond (Chappar) of village Badial as the pond has been filled in and construction is being carried out on the same. It has been asserted that in the revenue record as well as the other known facts for more than 50 years, the pond was in existence which has been filled in for carrying out illegal constructions. This act on the part of the Gram Panchayat itself, amounts to encroachment on the pond i.e. Khasra No.438, in violation of the provisions of the statute as also the judgment of the Hon'ble Supreme Court in 'Jagpal Singh and others Vs. State of Punjab and others, Civil Appeal No.1132 of 2011 decided on 28.01.2011' and as on to the judgment of this Court in 'CWP-9885-2020 titled as Terjinder Kumar and others Vs. State of Punjab and others' decided on 15.07.2020 (Annexure P-3). It has further been asserted that not only this, even the Director Rural Development and Panchayat, Punjab had vide communication dated 08.09.2021 addressed to the District Development and Panchayat Officer, Hoshiarpur (Annexure P-6) and vide letter dated 15.09.2021 sent by the Director Land Records, Punjab (Annexure P-7) to the Deputy Commissioner, Hoshiarpur had called upon these authorities to inquire into the allegations that has been made by the petitioner with regard to filling up of the pond and making construction therein but despite the same, no action has been taken. Petitioner has also approached the Deputy Commissioner, Hoshiarpur vide complaint dated 08.10.2021 (Annexure P-8) but without any response thereto as well. He, on this basis, asserts that the action on the part of the Gram Panchayat is totally unacceptable and in violation of the law laid down by the Hon'ble Supreme Court and this Court and also in violation of the statutory provisions of the Punjab Village Common Lands (Regulation) Act 1961.</div><div style="text-align: justify;">Learned counsel for the State of Punjab prays for an adjournment to seek instructions. Let the Deputy Commissioner, Hoshiarpur and also the District Development and Panchayat Officer, Hoshiarpur respondent Nos.4 and 6 respectively file their specific affidavit as to what action has been taken by them in pursuance to the representation/ directions received from the office of the Director Rural Development and Panchayat Punjab and Director Land Records, Jalandhar, respondent Nos.2 and 3, within a period of four weeks from today.</div><div style="text-align: justify;">Status quo with regard to construction, if any, be maintained on the land in question i.e. Khasra No.438 till the next date of hearing. The Deputy Commissioner, Hoshiarpur shall ensure that no further construction is carried out on the land referred to above.</div><div style="text-align: justify;">Adjourned to 21.12.2021."</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">4. In response to the notice being issued by this Court, the official respondent(s) concerned furnished their reply, through an affidavit sworn by respondent No.6, i.e. District Development and Panchayat Officer, Hoshiarpur. However, a perusal of the reply (supra) reveals rather a completely contrasting picture, than the one canvassed by the petitioner, in the instant writ petition. The reply (supra) unfolds that Village Badial Sainian is a small hamlet, comprising of only about 26 houses, with a population of about 150 individuals. It further reveals that, as per the relevant revenue record(s), a "Gair Mumkin Pond", measuring 64 Marlas, was reserved during consolidation operations, but within the "abadi deh" of the village concerned, over Khasra No.438/1 (3-4), however, a government primary school was constructed over some part of the khasra number (supra), inasmuch as, the said school was constructed approx. upon 5-6 marlas, about 50 years ago. Another chunk of 5-6 marlas of land, in front of the said school, i.e. between the street and the school, is also being used for ingress and egress from the school. Apart from this, another area measuring 30 marlas is used as playground by the children of the village concerned. Ultimately, after utilization of the above portions of land, in the above manner, which was rather reserved for "Gair Mumkin Pond", only an area measuring 10 marlas remained vacant, however, this area was also used for accumulating sullage and dirty water of the village concerned. The reply (supra) is supported by a detailed map, depicting therein the exact position, as exists at the spot. It further transpires from the reply (supra) that a Gurudwara is also situated near the above land reserved for "Gair Mumkin Pond".</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">5. Therefore, considering the ill effects of accumulation of sullage and dirty water, in the above portion of "Gair Mumkin Pond" falling in "abadi deh", as well as the health hazards arising therefrom, an NRI of the village concerned, namely Tirath Singh, who was interested in philanthropist activities, offered to donate 30 marlas of his private land for relocation of the pond. Even the said NRI also volunteered to lay the pipelines upto the relocated pond and also to construct a community hall after filling the said pond existing within "abadi deh".</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">6. In pursuance of the above welfare gesture of the NRI concerned, the Gram Sabha concerned, vide Resolution dated 10.06.2020, resolved to re- locate the pond outside the "abadi deh". Moreover, the resolution (supra) also gathered support from the circular bearing No. C/H-95/22769 dated 29.08.1995, issued by the Civil Surgeon, Hoshiarpur, who opined therein that a new pond cannot be excavated within the Phirni/Lal Lakir of the village concerned. Faced with the above life hazard problems and the instructions issued by the Civil Surgeon concerned, the inhabitants of the village concerned, decided to relocate the pond outside the "abadi deh", with the financial assistance of an NRI of the village concerned.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">7. Therefore, a new pond was got excavated on 30 marlas of land, which was donated by the NRI concerned, and the NRI concerned also got connected the out drains of sullage water of the village concerned, through a pipeline to the newly excavated pond, at his own expenses, which were to the tune of approx. Rs.2.91 lacs. Even the Executive Engineer concerned had also approved the laying of pipeline to the newly excavated pond, being technically correct.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">8. After shifting of the original pond outside the "abadi deh", which was existing over Khasra No.438/1, upon an area measuring 10 marlas, the area of the original pond was filled up with sand and thereupon, a community hall was constructed thereon for the utilization by all the inhabitants of the village concerned. An expenditure of approx. Rs.15 lacs was incurred on the construction of this community hall, which was borne by all the residents of the village concerned and by the NRI concerned.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">9. The hereinabove recorded facts reveal that the petitioner has filed the instant petition by concealing the material facts from this Court. Moreover, from a perusal of the record(s), it is revealed that the petitioner is neither an inhabitant nor a proprietor of the village concerned, which consequently gives rise to an inference that he has filed the present writ petition, not for any bonafide reason, rather for some extraneous consideration. This inference gains corroboration from the petitioner failing to make complete compliance of the order made by this Court on 09.01.2023, wherein, this Court had specifically directed the petitioner to place on record, the requisite document(s) to establish his locus standi, however, the petitioner has placed on record only a Jamabandi, which depicts that he has a very minimal share in a joint land in the village concerned. Apart from this Jamabandi, the petitioner has not produced any document on record to establish, that he is the original proprietor or pattidar of the village concerned. The order made by this Court on 09.01.2023 is reproduced hereunder:-</div><div style="text-align: justify;">"1. After hearing the learned counsel for the parties for some time, the learned counsel for the petitioner, at this stage, has not been able to prima facie justify his locus standi to maintain the instant petition, before this Court.</div><div style="text-align: justify;">2. Therefore, as prayed for, he is directed to place on record the list of bartandarans, prepared, and, maintained by the Patwari of the halqa concerned, with echoings thereins of the petitioner being the bartandaran in the halqa concerned.</div><div style="text-align: justify;">3. List on 11.4.2023."</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">10. Although, the concealment of material facts (supra) and the non- establishment of locus by the petitioner, are sufficient to dismiss the present petition with costs, however, since the dispute involved in the present case, relates to re-location of a pond from within the "abadi deh" to a site outside the "abadi deh", therefore we deem it apt to further examine the matter.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">11. It is not the case of the petitioner that the Sarpanch of the Gram Panchayat concerned had, with any malafide intention, re-located the pond, rather out of the total area reserved for pond, some portion had already been utilized by the government, by constructing a school about 50 years back, which still exists at the site concerned. Furthermore, some portion is used for ingress and egress from the said school, and, also as a playground by the children of the village concerned. After such utilization of this area, only an area measuring 10 marlas remained vacant, however, that too was used for discharge of sullage and dirty water of the village concerned. The consequence of such discharge of sullage and dirty water was spreading of life endangering diseases in the village concerned, thereby making the inhabitants of the village exposed to life hazards. Although the above acts, which though are result of a bonafide necessity of the entire villagers, may not have the sanctity of law, however, since the same have been done for the benefit of all the inhabitants of the village concerned and with no particular individual getting benefit from the above acts of Gram Sabha, resultantly the acts (supra) cannot invite wrath of this Court.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><b>12. Insofar as the judgment (supra), as relied upon by the learned counsel for the petitioner, is concerned, the same also does not have any apt applicability to the case in hand. The Hon'ble Supreme Court, in the judgment (supra), while directing the respective Chief Secretaries of all the State Governments to prepare a scheme for eviction of illegal unauthorized occupants, upon Gram Sabha/Gram Panchayat/Shamlat deh land, and thereafter, restoring possession thereof to the Gram Panchayat(s) concerned, also has assigned relaxations for regularizing possession(s) in exceptional cases, vis-a-vis, where the land 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 existing on such land. Since, over some portion of the disputed land, a government school and a community center have been constructed, thereby with the same subserving a public purpose, or, the same being an educational institution and a public utility center, thus make them fall within the exception (supra), as carved in the judgment (supra) and therefore, the same are required to be regularized. The directions issued by the Hon'ble Supreme Court, in the judgment (supra), are extracted hereunder.</b></div><div style="text-align: justify;"><b>"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."</b></div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">13. Village ponds are the epicenter of rural life and they also maintain balance in a fragile ecosystem. In the present case, the pond has been virtually converted into a disposal point for sullage and dirty water, which instead of maintaining balance of ecosystem in the village concerned, rather became a flash-point for spreading of various diseases. Therefore, considering the fact that the pond has already been converted into a school building and a community center, we do not find it appropriate to now order the demolition of these buildings, which are in fact, meant for the benefit of the inhabitants of the village concerned, especially considering the fact that an alternate pond has also been excavated, on the land donated by the NRI concerned, outside the "abadi deh". Therefore, in the light of peculiar facts and circumstances, we deem it appropriate to issue specific directions to the official respondent(s) concerned to prepare and thereafter, implement a comprehensive action plan for proper functioning of the newly constructed pond, so that the same can serve the purpose, which otherwise was meant to be served by the original pond.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(i) to ensure the transfer of the newly excavated pond's land in favour of the Gram Panchayat concerned, which was gifted by the NRI concerned for this purpose;</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(ii) to ensure that in future, the land of pond shall not be converted or used for any other purpose;</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(iii) to ensure proper installation and maintenance of treatment facilities in the village, so that sullage water of the village concerned can be safely disposed off;</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(iv) to ensure proper disposal of sullage water after treatment and to ensure that the same is not disposed of in the pond;</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(v) to ensure identification of sources of pollution(s) near the pond and thereupon ensure removal of such pollutant(s);</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(vi) to ensure environment restoration and replenishment of surface water;</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(vii) Department of Rural Development and Panchayat shall ensure providing the requisite infrastructure, such as pumping machinery, channels and pipe system for utilization of pond water;</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(viiii) Department of Rural Development and Panchayat shall further ensure providing the necessary treatment facilities for proper maintenance and management, in a scientific manner, of the village pond;</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Apart from the above issued directions, no further intervention is required to be made in the present writ petition. The present petition is disposed of accordingly.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The compliance report in respect of the above issued directions be submitted by the competent and responsible functionary concerned, within three months from today.</div><div style="text-align: center;"><br /></div><div style="text-align: center;">(SURESHWAR THAKUR) <span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span>(KULDEEP TIWARI) </div><div style="text-align: center;"> JUDGE <span> </span>JUDGE </div><div style="text-align: center;"><br /></div><div style="text-align: justify;">02.06.2023 </div>Claim for Commonshttp://www.blogger.com/profile/06082132405339033351noreply@blogger.com0tag:blogger.com,1999:blog-5162401328122846212.post-44470279992692140992023-08-06T22:01:00.004+05:302023-08-06T22:01:53.655+05:30J&K High Court in Mohammad Sultan Sheikh vs UT of JK [22.05.23]S. No. 25 Regular Cause List <div><br /></div><div style="text-align: center;">THE HIGH COURT 0F JAMMU & KASHMIR AND LADAKH </div><div style="text-align: center;">AT SRINAGAR </div><div style="text-align: center;">WP(C) no. 570/2022 </div><div><br /></div><div>Mohammad Sultan Sheikh and Others
<span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span> ...Appellant(s)/Petitioner(s) </div><div>Through: Mr. Sheikh Hilal, Advocate </div><div style="text-align: center;">Vs. </div><div>UT of JK and others
<span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span> ...Respondent(s) </div><div>Through: Mr. Mohsin Qadiri, Sr. AAG with Ms. Maha Majeed, Advocate </div><div><br /></div><div>CORAM:
HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE </div><div><br /></div><div><div style="text-align: center;">ORDER</div><br /><div style="text-align: justify;">22.05.2023 </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Petitioners are claiming the following relief(s) in this petition:</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">1. Directing the respondents not to make the construction of a dumping site for the disposal of waste/garbage near the educational Institute, Primary Health Centre and residential area situated at Arath Narbal Dsitrict Budgam.</div><div style="text-align: justify;">2. Directing the respondents not to make the construction of dumping site on the land which is kept for grading purposes in village Arath Narbal District Budgam".</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Learned counsel for the petitioners submits that they would be satisfied, in case respondents are directed to proceed in the matter in accordance with law.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Mr. Mohsin Qadiri, learned Sr. AAG who appears for the respondents submits that they will follow the procedure as laid down in the Judgment passed in the case of Jagpal Singh and others v. State of Punjab and others, reported in (2011) 11 SCC 396.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">In view of the submissions made above, this petition is disposed of and it is provided that respondents may consider the case of petitioners in accordance with rules governing the field.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(VINOD CHATTERJI KOUL) </div><div style="text-align: justify;">JUDGE </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">SRINAGAR </div><div style="text-align: justify;">22.05.2023</div></div>Claim for Commonshttp://www.blogger.com/profile/06082132405339033351noreply@blogger.com0tag:blogger.com,1999:blog-5162401328122846212.post-73512798323573201742023-05-18T20:22:00.006+05:302023-05-18T20:22:45.951+05:30Andhra HC directs panchayat secretaries to identify & remove encroachments; state departments to evict from their lands [14.09.2022]<div style="text-align: center;">IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI</div><div style="text-align: center;">HON’BLE MR. JUSTICE PRASHANT KUMAR MISHRA, CHIEF JUSTICE </div><div style="text-align: center;">& </div><div style="text-align: center;">HON’BLE MR. JUSTICE D.V.S.S. SOMAYAJULU </div><div style="text-align: center;"><br /></div><div style="text-align: center;">WRIT PETITION (PIL).Nos. 140 of 2022, 112 of 2016, 233 of 2020, 271 of 2020, 317 of 2020, 12 of 2021, 130 of 2021, 208 of 2021, 240 of 2021, 259 of 2021, 4 of 2022, 94 of 2022, 100 of 2022, 101 of 2022, 125 of 2022, 128 of 2022, 129 of 2022 & 133 of 2022; </div><div style="text-align: center;">WRIT PETITION Nos.12511 of 2010, 9470 of 2010, 10778 of 2010, 25322 of 2011 & 29658 of 2011 (Through physical mode) </div><div style="text-align: justify;"><br /></div><div style="text-align: center;">COMMON ORDER (ORAL) </div><div style="text-align: center;"> Dt: 14.09.2022 </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(per Prashant Kumar Mishra, CJ) </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The issue brought before this Court in the present writ petitions filed in the nature of public interest litigation, is regarding the inaction of the State and its authorities in protecting the government lands of different classifications, viz., tank land/grama kantham/burial ground/forest land/road margin/play ground/cart track/hill poramboke/coastal areas/grazing land etc. Since the issue is common in all the writ petitions, they are heard together and are being disposed of by this common order. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">2. At the outset, we make it clear that though the alleged encroachers of the subject government lands have been made parties to some of the writ petitions, we are not venturing into any independent allegations against any particular individual, and owing to the public interest involved, we would like to examine the duty and responsibility of the State and its authorities in protecting the government lands from encroachments. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">3. We have heard the learned counsel for the parties and perused the material available on record. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">4. The issue of encroachment of government lands/public utility lands vested in the State, which are meant for common benefit of individuals, was considered in detail by the Hon’ble Supreme Court in Jagpal Singh v. State of Punjab reported in (2011) 11 SCC 396, while dealing with a case of encroachment of village pond. The Hon’ble Supreme Court noted that the appellants therein were trespassers who illegally encroached on to the Gram Panchayat land by using muscle power/money power and in collusion with the officials and even with the Gram Panchayat, and observed that such blatant illegalities must not be condoned and even if houses were constructed on the land in question by the encroachers, they must be ordered to be removed and possession of the land must be handed back to the Gram Panchayat. The Hon’ble Supreme Court further observed that regularization of such illegal constructions must not be permitted because the constructions were made on Gram Sabha land, which must be kept for common use of the villagers of the village, and that the Court cannot allow the common interest of the villagers to suffer merely because the unauthorized occupation has subsisted for many years. In the above judgment, the Hon’ble Supreme Court referred to its earlier decision in M.I. Builders (P) Ltd. v. Radhey Shyam Sahu reported in 1999 (6) SCC 464, wherein restoration of a park after demolition of a shopping complex constructed at a cost of more than Rs.100 crores was ordered. The Hon’ble Supreme Court also referred to its another decision in Friends Colony Development Committee v. State of Orissa reported in 2004 (8) SCC 733, wherein it was held that even where the law permits compounding of unsanctioned constructions, such compounding should only be by way of an exception, and observed that the said decision would apply to the cases of encroachment of village common land with even greater force. The Hon’ble Supreme Court further observed that compounding 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. The Hon’ble Supreme Court lastly referred to its decision in Hinch Lal Tiwari v. Kamala Devi reported in AIR 2001 SC 3215 (followed by the Madras High Court in L. Krishnan v. State of Tamil Nadu [2005 (4) CTC 1 Madras]), wherein the Court ordered the respondents therein to vacate the land recorded as a pond, which was illegally occupied by them, after taking away the material of the house constructed therein. The Hon’ble Supreme Court, having noted its earlier decisions referred to above, ultimately issued the following directions as contained in paragraph 22 of the judgment, which reads thus: </div><div style="text-align: justify;"><br /></div><blockquote style="border: none; margin: 0 0 0 40px; padding: 0px;"><div style="text-align: justify;">“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.” </div></blockquote><div style="text-align: justify;"><br /></div><div style="text-align: justify;">5. It is to be noted that pursuant to the aforesaid directions issued by the Hon’ble Supreme Court, the State Government of Andhra Pradesh framed the Andhra Pradesh Gram Panchayats (Protection of Property) Rules, 2011 (for short, ‘the Rules of 2011’), notified vide G.O.Ms.No.188, Panchayat Raj & Rural Development (Pts.IV) Department, dated 21.07.2011. The said Rules provide for the procedure to be followed for protection of Gram Panchayat properties and eviction of encroachments. Under Rule 2 of the said Rules, the lands belonging to the Gram Panchayats have been classified into three categories, viz., (1) Category-A dealing with own and acquired properties, (2) Category-B dealing with gifts, donations, transfer of lands to Gram Panchayats and (3) Category-C dealing with properties vested with Gram Panchayats. Rule 3 provides for the procedure to be followed for protection of Gram Panchayat properties, in that, the executive authority (Panchayat Secretary) of the Gram Panchayat is required to prepare inventory of landed properties of the Gram Panchayats based on FMB (Field Measurement Book)/ FSA (Field Survey Atlas) and field inspections and the District Collectors shall instruct the Tahsildars to provide the above information to the executive authority (Panchayat Secretary) and web based solutions may be evolved over a period of time to locate Gram Panchayat lands in the public domain. After obtaining the land inventory details, Grama Sabha shall be convened to validate the information and thereafter, a meeting shall be convened by the Gram Panchayat to discuss and approve the land inventory details by passing a resolution and any objections received shall be settled as per the recorded evidence and then, the land inventory details approved by the Gram Panchayat shall be published in the District Gazette. If any property of the Panchayat is under occupation of any persons, Rule 4 would provide for the procedure for eviction of such encroachments, as per which notice and opportunity of hearing shall be provided to the party concerned before proceeding for eviction. Thus, it is apparent that the scheme formulated by the Government is a self-contained code. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">6. It is unfortunate to note that despite the directions of the Hon’ble Supreme Court in Jagpal Singh (supra) as noted above and despite framing the Rules of 2011, no steps are taken by the authorities of the Gram Panchayat to protect the Gram Panchayat lands from encroachment, and similarly, no steps are being taken by the Government and its authorities in protecting the government lands, and this is evident from the fact that day in and day out, writ petitions are being filed before this Court, in the nature of public interest litigation, alleging inaction of the authorities of the State Government in protecting the government lands and removing the encroachments. As the public authorities are failing in their duties in protecting the government lands, which are meant for the common use of general public, despite bringing to their notice, public spirited persons are approaching this Court to intervene and direct the public authorities to protect the government lands from encroachments. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><b>7. Considering the matter in its entirety and the significant public interest involved, we deem it appropriate to issue the following directions to the authorities: </b></div><div style="text-align: justify;"><b><br /></b></div><div style="text-align: justify;"><b>(i) The executive authority, i.e., Panchayat Secretary, of the respective Gram Panchayats in the State shall identify the Gram Panchayat lands, which are unauthorizedly occupied/encroached, and take steps for removal of such encroachments by issuing notice and providing opportunity of hearing to the unauthorized occupants/encroachers in terms of the procedure prescribed in Rules of 2011. This complete exercise shall be done within a period of six months from today. </b></div><div style="text-align: justify;"><b><br /></b></div><div style="text-align: justify;"><b>(ii) So far as the encroachments over the lands concerning the Municipalities/Forest Department/Revenue Department are concerned, even if no separate Rules have been framed prescribing the procedure to be followed in the matter of removal of encroachments over those lands, the officials of the concerned Departments, i.e., the Departments of Municipal Administration, Forest and Revenue, shall also undertake and complete the exercise of identification of unauthorized occupations/encroachments over the lands belonging to their respective Departments, within a period of two months from today, and thereafter, take steps for removal of such encroachments by following the principles of natural justice, i.e., issuing notice and providing opportunity of hearing to the unauthorized occupants/ encroachers, within a further period of four months. </b></div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">8. With the above directions, the writ petitions are allowed. No costs. Pending miscellaneous applications, if any, shall stand closed. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"> [PRASHANT KUMAR MISHRA, CJ <span> </span><span> <span> </span><span> </span> </span><span> </span><span> </span><span> </span> D.V.S.S. SOMAYAJULU, J </div>Claim for Commonshttp://www.blogger.com/profile/06082132405339033351noreply@blogger.com0tag:blogger.com,1999:blog-5162401328122846212.post-78641607006420771442023-02-07T21:33:00.001+05:302023-02-07T21:33:09.715+05:30Bombay HC in Suhas Jaganath Langade vs. State Of Maharashtra [13.01.2023]<div style="text-align: center;">IN THE HIGH COURT OF JUDICATURE AT BOMBAY </div><div style="text-align: center;">BENCH AT AURANGABAD </div><div style="text-align: center;">WRIT PETITION NO.488 OF 2023 </div><div style="text-align: center;"><br /></div><div style="text-align: center;">SUHAS JAGANATH LANGADE </div><div style="text-align: center;"><br /></div><div style="text-align: center;">VERSUS </div><div style="text-align: center;"><br /></div><div style="text-align: center;">THE STATE OF MAHARASHTRA THROUGH ITS PRINCIPAL SECRETARY
AND OTHERS</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Advocate for Petitioner : Mr. Kishor D. Khade </div><div style="text-align: justify;">AGP for Respondents: Mr. P.K. Lakhotiya. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">CORAM : MANGESH S. PATIL
& S.G. CHAPALGAONKAR, JJ.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">DATE : 13 JANUARY 2023 </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">ORDER :-</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">1. The petitioner is apparently espousing the cause of some stranger, who is not even made a party to this petition.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">2. Learned advocate for the petitioner submits that since the petitioner was successful in obtaining the order of this court in his own case, considering the plight of that stranger, he has taken the lead in filing this petition.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">3. He also cites the decision in the matter of "Indian Banks' Association vs. M/s. Devkala Consultancy Service & others" (Civil Appeal No. 4655 of 2000) to buttress his submission that the petitioner is taking up a cause of a stranger in the peculiar facts and circumstances and the question of locus should not prevent this Court from exercising powers under Article 226 of the Constitution of India.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">4. Learned AGP strenuously opposes the petition on the ground {2} 932 sr.no..odt of locus.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">5. True it is that in the matter of Indian Banks' Association, a Chartered Accountant had raked up the public cause. The objection on the ground of locus standi was refuted by the Supreme Court.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">6. In the matter in hand, the petitioner is espousing the individual cause of a family, which is seeking allotment of a piece of land from the Gairan. <b>Apart from the fact that, in allotment of such Gairan lands, a stern view is taken by the Supreme Court in the matter of Jagpal Singh and others vs. State of Punjab and others and (2011)11 SCC 396, and even this Court in Suo-motu PIL No. 2 of 2022 at the Principal Seat, has expressly directed not to regularize the encroachments on Gairan Land, there is serious doubt about the entitlement of that family to claim allotment of a plot.</b></div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Besides, the language being used by the petitioner in correspondence dated 5.12.2022 is also offending. We do not express anything more.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">6. The petitioner, by his communication dated 5.12.2022 was praying the respondents to take appropriate action on the stranger's request and has approached this Court on 7.12.2022.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">7. All these circumstances discussed here-in-above clearly demonstrate that the petitioner is a busy-body. No writ as prayed for by him can be issued.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">8. Writ petition is dismissed.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">[S.G. CHAPALGAONKAR, J] <span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span>[MANGESH S. PATIL, J]</div>Claim for Commonshttp://www.blogger.com/profile/06082132405339033351noreply@blogger.com0tag:blogger.com,1999:blog-5162401328122846212.post-40748178189593893492023-02-07T21:29:00.003+05:302023-02-07T21:29:45.204+05:30Rajasthan HC in State of Rajasthan vs. UltraTech Cement Ltd [31.01.2023]<div style="text-align: center;">HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR </div><div style="text-align: center;">D. B. Special Appeal (Writ) No. 987/2021 </div><div style="text-align: center;"><br /></div><div style="text-align: center;">In
S. B. Civil Writ Petition No. 356/2017 </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">1. State of Rajasthan, through the Principal Secretary
(Mines), Department of Mines and Petroleum,
Government of Rajasthan, Jaipur. </div><div style="text-align: justify;">2. The Director, Department of Mines and Geology, Udaipur.
----Appellants/Respondent No. 2 & 3. </div><div style="text-align: center;"><br /></div><div style="text-align: center;">Versus </div><div style="text-align: center;"><br /></div><div style="text-align: justify;">1. UltraTech Cement Limited, Unit: Kotputli Cement Works
Village Mohanpura, Tehsil Kotputli, District Jaipur through
its Joint Executive President Shri Chandra Shekhar
Pandey.
Respondent/Petitioner </div><div style="text-align: justify;">2. Union of India, through Secretary, Ministry of Mines,
Department of Mines, Shastri Bhawan, Dr. Rajendra
Prasad Marg, New Delhi - 110001.
----Respondent/Respondent No. 1 </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">For Appellants: Ms. Sheetal Mirdha Additional
Advocate General </div><div style="text-align: justify;">assisted by Mr.
Prateek Singh Advocate. </div><div style="text-align: justify;">For Respondents: Mr. K.K. Sharma Senior Advocate. </div><div style="text-align: justify;">Mr. Vivek Tankha Senior Advocate
through Video Conferencing. </div><div style="text-align: justify;">Ms. Alankrita Sharma Advocate, </div><div style="text-align: justify;">Mr.
Madhusudan Singh Rajpurohit
Advocate. </div><div style="text-align: justify;">Mr. Prashant Sivarajan Advocate. </div><div style="text-align: justify;">Mr. Rohan Talwar Advocate. </div><div style="text-align: justify;">Mr. Tushar Saigal Advocate through
Video Conferencing. </div><div style="text-align: justify;">Mr. Molik Purohit Advocate. </div><div style="text-align: justify;">Mr. Rahul Yaduvanshi Advocate. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA </div><div style="text-align: justify;">HON'BLE MRS. JUSTICE SHUBHA MEHTA </div><div style="text-align: justify;"><br /></div><div style="text-align: center;">Judgment </div><div style="text-align: center;"><br /></div><div style="text-align: center;">REPORTABLE </div><div style="text-align: center;"><br /></div><div style="text-align: justify;">31/01/2023 </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">By the Court: (Per Manindra Mohan Shrivastava, J.)</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">1. This appeal is directed against order dated 01.09.2021 passed by the learned Single Judge in S.B. Civil Writ Petition No. 356/2017, whereby, writ petition filed by Respondent No. 1-writ petitioner has been allowed and learned Single Judge has directed the appellants-State to execute mining lease in favour of Respondent No. 1-writ petitioner-company and also directed for handing over the possession to Respondent No.1-writ petitioner, while issuing ancillary directions.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">2. Respondent No. 1-writ petitioner filed writ petition aggrieved by inaction/refusal on the part of the appellants in the matter of execution of mining lease in its favour on pleadings inter alia that Respondent No. 1-writ petitioner is a company incorporated and registered under the provisions of the Companies Act, 1956 (hereinafter referred to as 'the Companies Act of 1956') and is the successor of M/s. Grasim Industries Limited. According to Respondent No.1-writ petitioner, under a scheme of arrangement (demerger) entered into between M/s. Grasim Industries Limited and M/s. Samruddhi Cement Limited on 18.05.2010, entire cement business of M/s. Grasim Industries Limited was transferred to its fully owned subsidiary M/s. Samruddhi Cement Limited in terms of Sections 391 and 394 of the Companies Act of 1956. This scheme of demerger was approved by the High Court of Madhya Pradesh and the High Court of Gujarat. Subsequently, scheme of amalgamation was entered into between M/s. Samruddhi Cement Limited and M/s. UltraTech Cement Limited, which was approved by the High Court of Gujarat and the High Court of Bombay. In terms of approved amalgamation scheme, all the assets including land, mining lease and Letters of Intent (LoIs), as claimed by Respondent No.1-writ petitioner, stood transferred and vested in favour of M/s. UltraTech Cement Limited(writ petitioner).</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">3. It was further averred that the State Government notified an area admeasuring 318.78 hectares under the Mineral Concession Rules, 1960 (hereinafter referred to as 'the Rules of 1960') for grant of mining lease for setting up of a cement plant with the capacity of 1.0 MTPA. M/s. Grasim Industries Limited had already applied for grant of mining lease vide its application dated 05.06.2007, in pursuance whereof, the State Government issued a Letter of Intent (LoI) on 10.10.2007 containing as many as four conditions which related to environmental clearance, submission of mining plan, consent letter from land owner and NOC from Forest Department. The letter of intent was further extended from time to time. The Forest Department granted NOC on 11.08.2008 and environmental clearance from Ministry of Environment and Forest was also granted on 06.05.2010. Respondent No.1-writ petitioner had already submitted mining plan, which was approved on 22.12.2008.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">According to Respondent No.1-writ petitioner, Letter of Intent was further extended on 03.12.2010 up to 30.09.2011 on three conditions, namely, enhancement of capacity of plant from 3 MTPA to 4 MTPA, deposit of keenness money and payment of stamp duty for the amalgamation effected between M/s. Grasim Industries Limited and M/s. UltraTech Cement Limited. Further, in view of the approval of the scheme of amalgamation, condition was also imposed in the LoI with regard to change in the name from M/s. Grasim Industries Limited to M/s. UltraTech Cement Limited. Respondent No.1-writ petitioner wrote a letter to Director, Department of Mines and Geology on 07.07.2010 for grant of mining lease. Since all the compliance had been made, Assistant Mining Engineer also recommended grant of mining lease in favour of Respondent No.1-writ petitioner. On the request of Respondent No.1-writ petitioner, LoI was further extended from time to time. Lastly, it was extended for a period of six months vide letter dated 11.12.2014. As according to Respondent No.1-writ petitioner, it had applied for grant of lease with all the formalities and letter was also being written by the concerned authority for grant of mining lease, it was illegally withheld without any justifiable reason.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">4. Aggrieved by non-execution of mining lease, Respondent No.1-writ petitioner approached this Court by filing writ petition seeking direction for execution of mining lease in its favour in respect of the area applied for.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">5. In the reply filed by the appellants (Respondents No. 2 and 3 in the writ petition), it was stated that in view of amendment in the Mines and Minerals (Development and Regulation) Act, 1957 (for short 'the MMDR Act') vide Amendment Act No. 10 of 2015, the application submitted by Respondent No.1-writ petitioner for grant of mining lease as well as LoI issued to it stood automatically lapsed in view of the sunset clause under the newly amended provision. The other main ground to oppose the relief sought by Respondent No.1-writ petitioner was that a part of the land admeasuring 1.38 hectares out of total area of 318.78 hectares covered under the LoI and in respect of which, application for grant of lease was made by Respondent No.1-writ petitioner, is recorded as charagah (pasture) land in the revenue records and, therefore, in view of the directions issued by the Hon'ble Apex Court in the case of Jagpal Singh and Others Vs. State of Punjab and Others (2011) 11 SCC 396 and policy decision taken by the State Government in compliance of the directions of the Hon'ble Apex Court, no mining lease could have been granted on the land, which was recorded as charagah land. Various circulars issued by the State Government from time to time which remained in force till 11.01.2017, on which date, by operation of sunset clause, the application for grant of mining lease and LoI allegedly stood lapsed, were also relied upon by the appellants.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">6. It was further case of the appellants that apart from fulfillment of four conditions enumerated in Letter of Intent, Respondent No.1-writ petitioner was required to fulfill all other conditions, particularly condition relating to exclusion of charagah land from the mining lease area. However, Respondent No.1-writ petitioner refused to exclude the area of charagah land from the mining area vide its letter dated 16.05.2016. It was the case of the appellants that in view of the provisions contained in the Rajasthan Tenancy (Government) Rules, 1955 (hereinafter referred to as 'the Rules of 1955'), as amended from time to time, it was provided in the newly added proviso to Rule 7 of the Rules of 1955 that pasture land shall not be changed as sawai chak for mining purposes without prior permission of the State Government and the permission shall be granted only if the intending applicant surrenders equal area of khatedari land in favour of the State Government in the same or nearby village. However, before the said amendment was brought into effect, the application stood lapsed in view of provisions contained under Section 10A of the MMDR Act.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">7. Before learned Single Judge, Respondent No.1-writ petitioner also claimed relief on the ground of parity stating that in identical cases relating to the matters of application of mining lease submitted by Wonder Cement and Shree Cement, this Court allowed their writ petitions, directing grant of mining lease excluding charagah land and, therefore, Respondent No.1-writ petitioner was also entitled to the same relief.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">8. Vide impugned order dated 01.09.2021, learned Single Judge allowed the writ petition holding that amendment made under the MMDR Act vide notification dated 20.03.2021 would not cover the cases where the applications were also made and LoIs have been issued much earlier.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Further, the learned Single Judge also took into consideration that relief was granted to M/s. Wonder Cement by directing that land admeasuring 40.62 hectares recorded as charagah land be excluded and lease be granted for the remaining part of the land. Learned Single Judge also held that similar issue arose for consideration in the case of Shree Cement Limited and lease was granted by directing exclusion of charagah land. Learned Single Judge further noticed that Respondent No.1-writ petitioner has also deposited stamp duty. Learned Single Judge also held that the order passed by the High Courts in the matter of amalgamation specifically mentions regarding LoI as an asset, to be transferred as right of title, interest and investments, vests with M/s. UltraTech Cement. Respondent No.1-writ petitioner- company having informed the Government regarding the change of name, as per Rule 62 of the Rules of 1960, it was held that Respondent No.1-writ petitioner was entitled to grant of mining lease.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">9. Learned Additional Advocate General appearing on behalf of the appellants would submit that Letter of Intent was initially issued in the name of M/s. Grasim Industries Limited and it could not be transferred automatically in favour of Respondent No.1-writ petitioner, M/s. UltraTech Cement Limited, which is successor company. It is contended that there is no vesting of LoI with Respondent No.1-writ petitioner as a result of demerger/ amalgamation. According to learned Additional Advocate General, the provisions contained in the MMDR Act and the Rules framed thereunder do not envisage transfer of LoI. She would submit that none of the rules framed under the MMDR Act provides for transfer of LoI. Therefore, at the time, when application was made for grant of mining lease, until its automatic rejection in view of sunset clause, the LoI issued in favour of M/s. Grasim Industries could not be claimed as LoI issued in favour of Respondent No.1-writ petitioner. It is further submitted that Rule 62 of the Rules of 1960 does not apply in the case of demerger/amalgamation of companies and transfer of assets. It is argued that said Rule applies only in limited circumstances where an applicant for, or the holder of a reconnaissance permit, a prospecting licence or a mining lease shall intimate to the State government within sixty days any change that may take place in his name, nationality or other particulars mentioned in the relevant forms and similarly where holder of a reconnaissance permit or a prospecting licence or a mining lease requires any change in its name, nationality or other particulars. Present is not a case of mere change of name, nationality, but it is a case of transfer of assets of one company into other company through the process of demerger/amalgamation. It is further submitted that mere payment of stamp duty will not suffice the purpose. It is also argued that LoI does not create any relationship as it is not an asset. Reliance has been placed on the decision of the Delhi High Court in the case of M/s. Ispat Industries Ltd. Vs. Union of India & Others, Writ Petition (Civil) No. 17320 of 2006 decided on 04.11.2009.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">10. Next submission of learned Additional Advocate General is that in view of newly inserted Section 10A vide Amendment Act No. 10 of 2015 amending MMDR Act, all applications prior to the commencement of the Mining and Mineral (Development and Regulations) Amendment Act, 2015, shall become ineligible. It is contended that in the present case, the application remained pending and Respondent No.1-writ petitioner failed to fulfill the conditions, therefore, the application and LoI, if any, lapsed. Thus, by virtue of operation of sunset clause with effect from 11.01.2017, the right of Respondent No.1-writ petitioner, if any, to seek a direction for grant of mining lease, no longer exists and, therefore, no mandamus could be issued commanding the State to execute lease deed on the basis of the application and LoI, which no longer remained valid and operative in law.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">11. Learned Additional Advocate General would next submit that Respondent No.1-writ petitioner had applied for grant of mining lease in respect of the area admeasuring 318.78 hectares, which also included pasture land over an area of 1.38 hectares comprised in the total area of mining. Respondent No.1-writ petitioner had submitted an affidavit under which it has stated that he would produce NOC, but no NOC was produced. In view the judgment of the Hon'ble Supreme Court in the case of Jagpal Singh and Others Vs. State of Punjab and Others (supra) as also various circulars issued by the State authorities from time to time, which have been annexed with the reply to writ petition and affidavits, the mining lease could not be granted in favour of Respondent No.1-writ petitioner in respect of the area comprising charagah (pasture) land. Respondent No.1-writ petitioner neither obtained NOC from the State Government, nor excluded the area of charagah land from the mining area. On the other hand, Respondent No.1-writ petitioner vide its letter dated 16.05.2016 communicated its refusal to reduce the mining area by excluding charagah land. Respondent No.1-writ petitioner, even till date, has failed to produce any offer or application made before the competent authority for setting apart charagah land under Rule 7A of the Rules of 1955 by surrendering an equal area of khatedari land in favour of State in the same village. Therefore, Respondent No.1-writ petitioner was not entitled to any relief.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">12. Learned Additional Advocate General, in support of her submissions, has placed reliance upon the decisions of the Hon'ble Supreme Court in the cases of South Eastern Coalfields Ltd. & Others Vs. S. Kumar's Associates AKM (JV), 2021 SCC OnLine SC 486; Rajasthan Cooperative Dairy Federation Ltd. Vs. Maha Laxmi Mingrate Marketing Service Pvt. Ltd. & Others, (1996) 10 SCC 405; Jagpal Singh and Others Vs. State of Punjab and Others (supra); Maharashtra State Cooperative Bank Limited Vs. Assistant Provident Fund Commissioner and Others (2009) 10 SCC 123; Sri Tarkeshwar Sio Thakur Jiu Vs. Dar Dass Dey & Co. & Others (1979) 3 SCC 106; State of Karnataka & Others Vs. Subhash Rukmayya Guttedar & Others 1993 Supp (3) SCC 290; M/s. General Radio and Appliances Co. Ltd. & Others Vs. M.A. Khader (Dead) by LRs (1986) 2 SCC 656; Delhi Development Authority Vs. Nalwa Sons Investment Ltd. and Another, 2019 SCC OnLine SC 586; Miheer H. Mafatlal Vs. Mafatlal Industries Ltd. (1997) 1 SCC 579; Hindustan Lever and Another Vs. State of Maharashtra and Another (2004) 9 SCC 438; Gram Panchayat, Village Kanonda, Tehsil Bahadurgarh, District Rohtak, through its Sarpanch Vs. Director, Consolidation of Holdings, Haryana, Chandigarh and Others 1989 Supp (2) SCC 465; State of Bihar (Now State of Jharkhand) through the Sub-Divisional Officer Vs. Tata Iron and Steel Company Limited (2019) 7 SCC 99; The Commissioner of Sales Tax, U.P., Lucknow Vs. M/s. Parson Tools and Plants, Kanpur (1975) 4 SCC 22; Assistant Commissioner, Assessment-II, Bangalore and Others Vs. Velliappa Textiles Ltd. and Another (2003) 11 SCC 405.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">13. Lastly, it is submitted that the case of Respondent No.1-writ petitioner is distinguishable from the decisions of this Court in the cases of M/s Wonder Cement Limited Vs. State of Rajasthan & Others (S.B. Civil Writ Petition No. 126/2017 decided on 23.08.2017) and Shree Cement Limited Vs. The State of Rajasthan & Others (S.B. Civil Writs No. 128/2017 decided on 26.09.2018). The relief was granted to the petitioners in the aforesaid cases because they had excluded charagah land from mining area whereas in the case of Respondent No.1-writ petitioner, it refused to reduce charagah land from the mining lease area. Therefore, it is argued, learned Single Judge was not correct in holding that case of Respondent No.1-writ petitioner was identical to that of M/s. Wonder Cement and Shree Cement.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">14. Per contra, in reply to the submissions made by learned Additional Advocate General appearing on behalf of the appellants, learned Senior Counsels appearing on behalf of Respondent No.1- writ petitioner would submit that insofar as transfer of Letter of Intent in favour of Respondent No.1-writ petitioner, M/s. UltraTech Cement Limited is concerned, the State, for the first time, has come out with an afterthought whereas at no point of time, in any of the communications till filing of the writ petition, the State ever denied grant of mining lease on the ground that Letter of Intent initially issued in favour of demerged company i.e. M/s. Grasim Industries Limited lapsed after its demerger under the scheme of arrangement with M/s. Samruddhi Cement Limited followed by amalgamation of M/s. Samruddhi Cement Limited with Respondent No.1-writ petitioner, M/s. UltraTech Cement Limited. Referring to letters issued from time to time, extending the validity period of Letter of Intent and more particularly, letter dated 03.12.2010 followed by further extension of Letter of Intent including letter dated 11.09.2014, it is contended that the extension of Letter of Intent was being granted with full notice and knowledge regarding demerger and amalgamation approved by the jurisdictional High Courts. The communications clearly show that the appellants had accepted Respondent No.1-writ petitioner- company as the successor company and has extended Letter of Intent. Therefore, it lies ill in the mouth of the State, now to raise such an issue before the Court. He would submit that the State is estopped from raising any such objection.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">15. Further submission of learned Senior Counsels is that neither any of the provisions of the MMDR Act, as amended from time to time and in force during the relevant period, nor the provisions contained in Rule 37 of the Rules of 1960, nor the provisions contained in the Minerals (Other than Atomic and Hydro Carbons Energy Minerals) Concession Rules, 2016 (hereinafter referred to as 'the Rules of 2016') govern or regulate, much less prohibit such transfer of LoI in favour of Respondent No.1-writ petitioner as a result of legal proceedings of demerger and amalgamation under the orders of the jurisdictional High Courts. It is submitted that the rule regulating transfer of LoI, for the first time, was made in the year 2021 by introducing Rule 23A in the Rules of 2016 with effect from 24.03.2021. Therefore, it is contended that in the absence of special law governing transfer of LoI in respect of grant of mining leases, the provisions of general application as contained in the Companies Act of 1956 will hold the field. Referring to the provisions of Section 391 to 394 of the Companies Act of 1956 as also demerger order and amalgamation order passed by the jurisdictional High Courts and various clauses contained therein, it has been contended that all the assets and liabilities including applications or any other interest of the demerged and amalgamated company stood transferred/vested in favour of Respondent No.1-writ petitioner, which included LoI issued in favour of M/s. Grasim Industries Limited.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">16. In reply to submission regarding application for grant of mining lease having lapsed and become ineligible by operation of sunset clause contained in Section 10A introduced vide Amendment Act No.10 of 2015, it is contended that the case of Respondent No.1-writ petitioner is saved under clause (c) of sub- section (2) of Section 10A of the MMDR Act as in the present case, Letter of Intent was issued by the State Government for grant of mining lease before the commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">17. Replying to the submission of learned Additional Advocate General regarding failure on the part of Respondent No.1-writ petitioner to fulfill terms and conditions in the matter of grant of mining lease, it has been extensively argued that Respondent No.1-writ petitioner fulfilled all the four conditions of Letter of Intent and, therefore, it cannot be said that the conditions of Letter of Intent were not fulfilled. Referring to the scheme of the Rules of 1960, prescribed performa of application and application for grant of mining lease, it is contended that there is no requirement of mining laws and the rules framed thereunder, which mandates submission of any affidavit or undertaking regarding charagah (pasture) land. Various conditions enumerated in Rule 27 of the Rules of 1960 alone are required to be fulfilled. Sub-rule (h) of Rule 27 of the Rules of 1960 prohibits carrying on or allowing to be carried on any mining operation in prohibited areas, however, it does not include charagah land. Learned Senior Counsel would further submit that Respondent No.1-writ petitioner gave an undertaking and submitted affidavit that it will not carry out any mining activities in charagah land unless it gets NOC from the competent authority.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Learned Senior Counsel would further argue that the notification inviting applications for grant of mining lease specified the entire area of 318.78 hectares without excluding charagah land. He would further submit that even in multiple extensions of LoI, which were granted, nowhere it was stated that Respondent No.1-writ petitioner should exclude the charagah land, though it was within the jurisdiction of the State authorities to direct that mining lease should be confined to or exclude charagah land. Referring to material on record, it has been argued that in fact, in the past, the entire area was already under excavation since 1981 when mining lease was granted in favour of one Rameshwar Bajaj in the year 1981. That lease was again transferred in the year 1986 in the name of National Limestone Company Private Limited without excluding any area comprised in 318 hectares. There was no condition in any of those leases to exclude charagah land and, therefore, ever since 1981, the then mining lease holders already exploited the entire mining area including so called charagah land and as a matter of fact, no charagah land exists in the entire area and, therefore, it is for this reason that while granting environmental clearance vide letter dated 06.05.2010, it was recorded that in the mining lease area of 318.78 hectares, there is no grazing land involved in the project. It was for this very reason also that in the mining plan duly approved by the Indian Bureau of Mines, no charagah land is shown. Learned Senior Counsel would submit that in fact, a part of the land was already allotted in favour of KVGSS and the area, which is now claimed as charagah land, was already exploited as mining area. Despite all this, Respondent No.1-writ petitioner had clearly given an undertaking and submitted affidavit that it will not operate any mining activity over the so called charagah land unless there is NOC granted in its favour. It is also contended that even though the State was empowered under the rules to reduce the mining area while granting mining lease, the State never communicated Respondent No.1-writ petitioner to either reduce the area applied for mining by excluding charagah land, nor directed the petitioner to exclude charagah land from the proposed mining lease area. Learned Senior Counsel also submitted that in any case, after the introduction of new rule, i.e. Rule 7A under the Rules of 1955, Respondent No.1-writ petitioner has already applied to the District Collector, District Jaipur on 13.06.2017 for surrender of 1.38 hectares of land for charagah purposes in lieu of 1.38 hectares of charagah land stated to be included in the mining lease area. There was no legal impediment in granting mining lease in favour of Respondent No.1-writ petitioner on its clear undertaking that it will not operate mining activities over the charagah land without NOC or appropriate orders as may be passed by the competent revenue authority.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">18. In support of their submissions, learned Senior Counsels have placed reliance on the decisions of the Hon'ble Supreme Court in the cases of His Holiness Kesavananda Bharati Sripadagalvaru Vs. State of Kearla & Another (1973) 4 SCC 225; Kusheshwar Prasad Singh Vs. State of Bihar & Others (2007) 11 SCC 447; Mohammed Gazi Vs. State of M.P. & Others (2000) 4 SCC 342; State of West Bengal & Others Vs. Mandira Chatterjee & Others (2012) 13 SCC 582; Beg Raj Singh Vs. State of U.P. & Others (2003) 1 SCC 726; Manuelsons Hotels Private Limited Vs. State of Kerala & Others (2016) 6 SCC 766; State of Bihar & Others Vs. Kalyanpur Cement Limited (2010) 3 SCC 274; Employees' State Insurance Corporation Vs. Union of India & Others AIR 2022 SC 1017; Public Service Commission, Uttaranchal Vs. Jagdish Chandra Singh Bora and Another (2014) 8 SCC 644; State of U.P. and Others Vs. Daulat Ram Gupta (2002) 4 SCC 98; Bhushan Power and Steel Limited Vs. S.L. Seal, Additional Secretary (Steel and Mines), State of Odisha and Others (2017) 2 SCC 125; Hindustan Lever and Another Vs. State of Maharashtra and Another (2004) 9 SCC 438; M/s. J.K. (Bombay) Private Ltd. (In all the Appeals) Vs. M/s. New Kaiser-I-Hind Spinning and Weaving Co. Ltd. & Others, AIR 1970 SC 1041; Dalmia Power Limited & Another Vs. Assistant Commissioner of Income Tax Circle 1, Trichy (2020) 14 SCC 736; Rajendra Prasad Gupta Vs. Prakash Chandra Mishra & Others (2011) 2 SCC 705; Principal Commissioner of Income Tax (Central)-2 Vs. Mahagun Realtors (P) Ltd., AIR 2022 SC 1672; decisions of Bombay High Court in the cases of Sadanand S. Varde & Others Vs. State of Maharashtra & Others, 2000 SCC OnLine Bom 341; Sequent Scientific Ltd., In Re, 2009 SCC OnLine Bom 2182; In Re: Pmp Auto Industries Ltd. & Others, Company Petitions Nos. 428 of 1991 and other connected petitions and applications decided on 12.12.1991; decision of Delhi High Court in the case of Telesound India Ltd., In re, 1980 SCC OnLine Del 327; decision of Calcutta High Court in the case of Castron Technologies Ltd. Vs. Castron Mining Ltd., A.O.P. No. 411 of 2011 and C.P. No. 594 of 2002 decided on 12.07.2013 which was affirmed by the Hon'ble Supreme Court in Castron Technologies Ltd. Vs. Anup Agarwalla and Another, Petition for Special Leave to Appeal (Civil) No. 32486/2013 decided on 25.11.2013; M/s. Kusum Marketing Ltd. & Another Vs. the State of West Bengal & Others 2017 SCC OnLine Cal 16551; decision of Gujarat High Court in the case of State of Gujarat & Others Vs. Nirmalaben S. Mehta & Others, (Letters Patent Appeal No. 683 of 2011 and other connected matters decided on 13.12.2011); decision of Madras High Court in Sahayanidhi Virudhunagar Ltd. through its Managing Director, A. Saminatha Mudaliar Vs. A.S.R. Subrahmanya Nadar and Others, AIR 1951 MAD 209; order dated 18.03.2011 passed by this Court in the case of Ojaswi Marbles and Granites Pvt. Ltd. Vs. The State of Rajasthan & Others (S.B. Civil Writ Petition No. 15114/2016 and one other connected writ petition); decisions in the cases of The State of Rajasthan & Others Vs. Ojaswi Marbles and Granites Pvt. Ltd. & Others (D.B. Special Appeal (Writ) No. 301/2021 decided on 08.07.2021); Shree Cement Limited Vs. The State of Rajasthan & Others (S.B. Civil Writs No. 128/2017 decided on 26.09.2018); affirmed by Division Bench of this Court in The State of Rajasthan & Others Vs. Shree Cement Limited (D.B. Special Appeal Writ No. 26/2019 decided on 22.01.2019); M/s Lafarge India Ltd Vs. State of Rajasthan & Others (S.B. Civil Writ Petition No. 427/2017 decided on 04.01.2018); M/s Wonder Cement Limited Vs. State of Rajasthan & Others (S.B. Civil Writ Petition No. 126/2017 decided on 23.08.2017); M/s. NU Vista Limited Vs. Union of India & Others (S.B. Civil Writ Petition No. 360/2017 decided on 01.09.2021); State of Rajasthan & Others Vs. M/s. NU Vista Limited & Others. (D.B. Civil Special Appeal (Writ) No. 998/2021 decided on 04.03.2022).</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">19. Lastly, it is submitted that Respondent No.1-writ petitioner is entitled to similar benefit already granted by this Court in the cases of M/s Wonder Cement Limited Vs. State of Rajasthan & Others (supra) and Shree Cement Limited Vs. The State of Rajasthan & Others (supra) and other cases where on facts, even though it was found that the area applied for mining lease included charagah land, direction was issued by this Court to grant mining lease excluding charagah land.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">20. The first issue arising for consideration is whether Letter of Intent issued in favour of M/s. Grasim Industries Limited was transferred/vested in favour of Respondent No.1-writ petitioner- successor company. Learned Additional Advocate General has vehemently contended that LoI could not be transferred as there exists no provision in the MMDR Act or in the Rules of 1960 or in the subsequent Rules of 2016 or under any other provisions of the Act and the rules framed thereunder.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">A perusal of the reply to writ petition filed by the appellant- State reveals that the State did not come out with such a case that as LoI could not be transferred in favour of Respondent No.1- writ petitioner, the appellants decided not to grant mining lease. Even with the reply, no such document has been filed by the State that at any stage, in the matter of consideration of writ petitioner's application for grant of mining lease, such a decision was taken in the files and note sheets to reject the application on this count. However, during the pendency of the writ petition, in subsequent additional counter affidavits filed by the appellant- State, a stand was taken that according to clarification dated 12.02.2018 issued by the Government of India, amalgamation of the company falls within the ambit of transfer and as there is no entailing transfer of application for grant of mining lease or Letter of Intent in MMDR Act and the rules framed thereunder, Respondent No.1-writ petitioner could not claim any right of grant of mining lease on the basis of LoI initially issued and thereafter extended from time to time in the name of transferor company M/s. Grasim Industries Limited. According to learned Additional Advocate General, LoI does not create any binding legal relationship between the parties. It cannot even be considered as an asset/property of the company and termed as transfer of assets and liabilities through scheme of amalgamation, if subject to statutory provisions.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">21. One of the arguments on the aforesaid issue is that since there does not exist any provision in the MMDR Act or under the rules framed thereunder, LoI is not transferable. It is contented that it is to be treated as excluded on the application of maxim, "expressio unius est exclusio alterius" and "casus omissus". The submission in this regard, is legally misconceived. There is neither any express, much less, any implied bar on the transfer of LoI either under the MMDR Act or the Rules of 1960 or even under the subsequently framed rules, i.e. the Rules of 2016. Section 12A of the MMDR Act provides for transfer of mineral concessions. The provisions relating to transfer of mining lease or a composite licence granted under the MMDR Act requires previous approval of the State Government. There is nothing in the aforesaid provision, which deals with Letter of Intent. Section 3, sub-section (ae) of the MMDR Act defines mining concession to mean either a reconnaissance permit, prospecting licence, mining lease, composite licence or a combination of any of the aforesaid and further provides that the expression "concession" shall be construed accordingly. Use of the word "means" clearly implies that the definition of mineral concession is exhaustive and not inclusive. It does not mention Letter of Intent. Thus, Section 12A of the MMDR Act does not govern transfer of Letter of Intent. In fact, under the scheme of the MMDR Act, there is no provision dealing with Letter of Intent.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">22. The Rules of 1960 have been framed by the Central Government. The provisions contained in Chapter IV of the Rules of 1960 regulates grant of mining lease in respect of land in which the mineral vest in the Government. Those provisions also do not regulate transfer of Letter of Intent. Rule 37 of the Rules of 1960 provides for transfer of lease and obviously, has no application in relation to Letter of Intent.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">23. The Rules of 2016, when framed and at the time when demerger and amalgamation took place in the year 2010, did not contain any provision with regard to transfer of Letter of Intent. Therefore, to say that in the absence of there being any provision regulating transfer of Letter of Intent, it should be assumed that there is implied prohibition on transfer of Letter of Intent, cannot be accepted. Reliance placed on the judgments of the Hon'ble Supreme Court in the cases of Gram Panchayat, Village Kanonda, Tehsil Bahadurgarh, District Rohtak, through its Sarpanch Vs. Director, Consolidation of Holdings, Haryana, Chandigarh and Others (supra); The Commissioner of Sales Tax, U.P., Lucknow Vs. M/s. Parson Tools and Plants, Kanpur (supra) and Rajasthan Cooperative Dairy Federation Ltd. Vs. Maha Laxmi Mingrate Marketing Service Pvt. Ltd. & Others, (supra) are misconceived in law. All that can be said is that there does not exist any provision regulating transfer of Letter of Intent.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">24. The provision for transfer of Letter of Intent, for the first time, was introduced by inserting Rule 23A vide GSR 209(E) dated 24.03.2021 with effect from 24.03.2021 in the Rules of 2016 which regulates transfer of Letter of Intent for grant of mining lease or composite licence in certain cases and till then, there was no provision. In the absence of there being any provision in the MMDR Act and the rules referred to above regulating transfer of Letter of Intent for grant of mining lease, all that can be said is that transfer of Letter of Intent, until insertion of Rule 23A in the Rules of 2016, there was no provision regulating transfer of Letter of Intent and it could not be advanced as a proposition of law that absence of provision for transfer of Letter of Intent implidely prohibits transfer of Letter of Intent.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">25. In the case of Rajasthan Cooperative Dairy Federation Ltd. Vs. Maha Laxmi Mingrate Marketing Service Pvt. Ltd. & Others, (supra), it was held that Letter of Intent merely expresses an intention to enter into a contract and where the conditions stipulated in the Letter of Intent are not fulfilled, and the conduct of the party in whose favour LoI has been issued is otherwise not such as would generate confidence, the party issuing Letter of Intent is entitled to withdraw the same and there is no binding legal relationship between the parties at the stage of issuance of Letter of Intent. It was held that the party issuing Letter of Intent is entitled to look at the totality of the circumstances in deciding whether to enter into a binding contract with the party or not.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">26. In one of the recent decisions, in the case of South Eastern Coalfields Ltd. & Others Vs. S. Kumar's Associates AKM (JV) (supra), it has been reiterated as settled proposition of law that LoI merely indicates a party's intention to enter into a contract with the other party in future and no binding relationship between the parties at that stage emerges. It has been observed that Letter of Intent can possibly be construed as a binding contract if such an intention is evident from its terms but then the intention to do so must be clear and unambiguous. However, it takes a deviation from how normally Letter of Intent has to be understood. Therefore, it is explicitly clear that Letter of Intent, as such, does not create a binding contractual relationship between the parties, but it can only be said to be an expression of an intention to enter into a contract.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">27. Demerger/amalgamation of company incorporated under the Companies Act of 1956 is governed by the Companies Act of 1956 itself. The provisions contained in Sections 391 to 394 of the Companies Act of 1956 govern demerger and amalgamation processes in relation to a company incorporated under the Companies Act of 1956. The Companies Act of 1956 was later on repealed and substituted by the Companies Act, 2013 (for short 'the Companies Act of 2013'). In the present case, the proceedings of demerger and amalgamation, to which we shall deal with in greater details hereafter, were drawn in the year 2010 and orders were passed by the respective jurisdictional High Courts in those years. Therefore, in the present case, the provisions of the Companies Act of 1956 were applicable.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">28. The scheme of arrangement (demerger) was entered into between M/s. Grasim Industries Limited and M/s. Samruddhi Cement Limited on 18.05.2010. The scheme envisaged transfer of entire cement business of M/s. Grasim Industries Limited to M/s. Samruddhi Cement Limited (a fully owned subsidiary of M/s. Grasim Industries Limited). In terms of statutory scheme of Sections 391, 392, 393 and 394 of the Companies Act of 1956, the High Court of Madhya Pradesh and the High Court of Gujarat vide their orders dated 31.03.2010 and 06.05.2010 respectively approved the scheme of demerger between M/s. Grasim Industries Limited and M/s. Samruddhi Cement Limited.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Subsequently, scheme of amalgamation was entered into between M/s. Samruddhi Cement Limited and M/s. UltraTech Cement Limited (Respondent No.1-writ petitioner). The scheme of amalgamation was duly approved by the High Court of Bombay and the High Court of Gujarat vide orders dated 11.06.2010 and 01.07.2010 respectively.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">29. In the case of Sadanand S. Varde & Others Vs. State of Maharashtra & Others (supra), an argument was raised before the Bombay High Court that the transaction by which two companies were amalgamated under the scheme of amalgamation, amounted to a "transfer" within the meaning of Clause (f) of Section 269UA of the Income Tax Act, 1961 and the "apparent consideration" for the transfer was the consideration indicated in the scheme of amalgamation and it being far in excess of the monetary limit of Rs. 10,00,000/-, there was an obligation to file a declaration in Form No. 37-I, and by reason of failure to do so, the consequences of application of Chapter XX-C of the Income Tax Act, 1961 could not be avoided.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">In reply, the argument was that Chapter XX-C of the Income Tax Act, 1961 was not intended to apply to transfer effected under the orders of a Court pursuant to Sections 391 to 394 of the Companies Act of 1956.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">It was further contended that the provisions of Chapter XX-C of the Income Tax Act, 1961 will apply only to the cases of "transfer" as defined by Clause (f) of Section 269UA of the Income Tax Act, 1961. While examining the aforesaid contentions, the
consequences of amalgamation of companies under the Companies Act of 1956 were also taken into consideration by the Bombay High Court and it was observed thus:</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">"106. It is next contended that the provisions of Chapter XX-C would apply only to cases of "transfer" as defined by Clause (f) of Section 269- UA. A scrutiny of the definitions of "apparent consideration" given in Clause (b) and "transfer" given in Clause (f) would unmistakably indicate that the transfers to which the provisions of Chapter XX-C are intended to apply, are only transfers under agreement or contractual transfers and not statutory transfers or transfers effected by orders of the Court or by operation of law. In a situation of amalgamation, the transfer is not by way of sale, exchange, lease or rent so as to fall within Section 269-UA. Further, the process by which the land in question stood vested in the transferee company by virtue of the amalgamation order, would not answer the description of "immovable property" within the meaning of Clause (d)(ii), nor does it answer the description of "transfer" as defined in Clause (f)(ii) of section 269-UA of the Income Tax Act. See in this connection (Sailendra Kumar Ray v. The Bank of Calcutta), 1948 (18) Company Cases 1 and (Sayananidhi Virudhunagar Ltd. v. A.S.R. Subramanya Nadar), A.I.R. 1951 Madras 209 and (Telesound India Ltd. In Re.), 1983 (53) Company Cases 926. In Sailendra Kumar Ray's case (supra), the Calcutta High Court held that in a situation of amalgamation even if it can be said that there was a transfer of asset, the transfer was not by way of an assignment but by the order of the Court backed up by the force of a statutory provision and by operation of law. In Sayayanidhi's case (supra), the Madras High Court reiterated this proposition. In Telesound's case (supra), it is held that as amalgamation has its origin in statute and is statutory in character, the transfer and vesting is by operation of law and not an act of the transferor company, nor an assignment by it, but is the result of a statutory instrument. In J.K. (Bom.) Pvt. Ltd. v. New Kaiser J. Hind Spinning and Weaving Co. Ltd., 1967 (2) Company Law Journal 272, this Court cited with approval the decision of the English Court in (Re Garner Motors Ltd.), 1937 (1) All. E.R. 671 and held that a scheme of amalgamation has statutory operation when sanctioned by the Company Court under the relevant provisions of the Companies Act and is distinct and different from a mere agreement signed by the necessary parties. Even if the scheme is approved by all concerned parties by consensus, merely because it is so agreed upon, the Court is not obliged to put its imprimatur on it. The Court has the discretion and power to reject a scheme even if all the shareholders and creditors have agreed to it. But, once the scheme is scrutinised by the Company Court and sanctioned by an order made by it under section 391 of the Companies Act, it ceases to retain the character of contract and operates by force of the statute. This judgment was considered by the Supreme Court in appeal in (J.K. (Bom.) Pvt. Ltd. v. New Kaiser J. Hind Spinning and Weaving Co. Ltd.), 1970 (40) Company Cases 689, and the Supreme Court reiterated that once a scheme becomes sanctioned by the Court, it ceases to operate as a mere agreement between the parties and becomes binding on the company, the creditors and shareholders and has statutory operation by virtue of the provisions of section 391 of the Companies Act. Such a scheme sanctioned by the Company Court is statutorily binding even on the creditors and shareholders who might have dissented from it or who might have opposed its being sanctioned. It, therefore, has the statutory sanction in that sense. The Supreme Court also approved the observations in Re Garner Motors Ltd. (supra) while coming to this conclusion. The observations of the Calcutta High Court in (House of Labourers Ltd. v. Comilla Baking), A.I.R. 1937 Cal. 381 are to similar effect.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">107. There is overwhelming authority of precedents suggesting that when an amalgamation takes place, the transfer of assets takes place by the force of the Company Court's order and/or by operation of law; it ceases to be a contractual or a consensual transfer. The contention, therefore, is that Chapter XX-C is not attracted to such a transfer by operation of law. This contention has substance and needs to be upheld."</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">30. In another decision in the case of Sequent Scientific Ltd., In Re (supra), Bombay High Court, relying upon decisions of the Hon'ble Supreme Court and different High Courts, observed thus:</div><div style="text-align: justify;">"18. ............ The question is whether the transferee company would be the successor of the transferor company in the context of the supply agreement.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">While giving the description of the intervenor company in the recital, the same agreement mentions that the expression unless it be repugnant to the context or meaning thereof, be deemed to mean and include its successors and assigns. In other words, both parties clearly understood that in so far as the successors of any of the party would be bound by the terms and conditions of the supply agreement. In the entire agreement, nowhere it is provided that before allowing succession, the concerned party should take prior written consent of the other. Unlike, in the case of transfer or assignment it is expressly provided that prior written consent of the intervenor company should be obtained. In the present case, the transferee company would become successor in interest as a consequence of the scheme of amalgamation as the transferor company would stand dissolved without winding up. The petitioners has justly relied on the decision of the apex court in the case of Bhagwandas Chopra v. United Bank of India reported in 1987 Supp SCC 536 : AIR 1988 SC 215, wherein the court considered the argument about the effect of scheme of amalgamation and the status of the transferee company as a result of such amalgamation. In paragraph 5, the apex court observed thus (page 218 of AIR 1988):</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">"It is, however, necessary to evolve a reasonable procedure to deal with cases where a devolution of interest takes place during the pendency of a proceeding arising under the Industrial Disputes Act, 1947. In the circumstances it is reasonable to hold that in every case of transfer, devolution, merger, takeover or a scheme of amalgamation under which the rights and liabilities of one company or corporation stand transferred to or devolve upon another company or corporation either under a private treaty, or a judicial order or under a law the transferee company or corporation as a successor-in- interest becomes subject to all the liabilities of the transferor company, or corporation and becomes entitled to all the rights of the transferor company or corporation subject to the terms and conditions of the contract of transfer or merger, the scheme of amalgamation and the legal provisions, as the case may be, under which such transfer, devolution, merger, takeover or amalgamation, as the case may be, may have taken place. It follows that subject to such terms it becomes liable to be impleaded or becomes entitled to be impleaded in the place of or in addition to the transferor company or corporation in any action, suit or proceeding filed against the transferor company or corporation by a third party or filed by the transferor company or corporation against a third party and that whatever steps have already taken place in those proceedings will continue to operate against and be binding on the transferee company or corporation in the same way in which they operate against a person on whom any interest has devolved in any of the ways mentioned in rule 10 of Order 22 of the Code of Civil Procedure, 1908, subject of course to any terms in the contract of transfer or merger, scheme of amalgamation or other relevant legal provisions governing the transaction under which the transferee company or corporation has become the successor-in-interest of the transferor company or corporation."</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">In the aforesaid case, Full Bench judgment of the Madras High Court in the case of Sahayanidhi (Virudhunagar) Ltd. v. A.R.S. Subrahmanya Nadar (1950) 20 Comp Cas 214, dealing with the effect of order of the Court sanctioning the scheme of arrangement, was also considered by the Bombay High Court as below:</div><div style="text-align: justify;">"19. It may be useful to advert to the decision of the Full Bench of the Madras High Court in the case of Sahayanidhi (Virudhunagar) Ltd. v. A.S.R. Subrahmanya Nadar reported in [1950] 20 Comp Cas 214 : AIR 1951 Mad 209. In Paragraph 4, the court dealing with the effect of order of court sanctioning the arrangement observed thus (page 217):</div><div style="text-align: justify;">"Before considering the terms and stipulations in the two deeds of transfer referred to as A-2 and A-3, we would like to refer to section 153A of the Companies Act which has been enacted with a view to facilitate arrangements and compromises between a company and its creditors or shareholders which involve a transfer of its assets and liabilities to other companies as part of such arrangement. If any such scheme or arrangement is sanctioned by court, the court is empowered by the section to make provision by its order sanctioning the arrangement or any subsequent order, for the transfer of the assets and liabilities of a company in liquidation to another company, styled in the section as the transferee company.</div><div style="text-align: justify;">Where an order of court made under the section provides for the transfer of the assets and liabilities of a company in liquidation to another company, the assets are, by virtue of that order, without more, transferred to and vest in the transferee company and the liabilities of the former company are also cast upon the transferee company."</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The legal consequences flowing as a result of scheme of arrangement approved by the High Court under the provisions of the Companies Act, 1956 were considered on the factual premise of that case that the supply agreement provided that the transferor company shall, unless it be repugnant to the context and meaning thereof, be deemed to mean and include its successors and permitted assigns and it was held as below:</div><div style="text-align: justify;">"21. A priori, the transferee company would step in the shoes of successor in interest of the transferor company and would be bound by the terms and conditions of the supply agreement and is obliged to comply with the same in its letter and spirit in all respects. .............."</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">31. In another decision in the case of Telesound India Ltd., In re (supra), Delhi High Court while dealing with legal consequences flowing from the scheme of arrangement under the Companies Act of 1956 in the matter of amalgamation of two companies, held as below:</div><div style="text-align: justify;">"12. Amalgamation of a company with another or an amalgamation of two companies to form a third is brought about by two parallel schemes of arrangements entered into between one company and its members and the other company and its members and the two separate arrangements bind all the members of the companies and the companies when sanctioned by the court. Amalgamation is, therefore, an absorption of one company into another or merger of both to form a third, which is not a mere act of the two companies or their members but is brought about by virtue of a statutory instrument and to that extent has statutory genesis and character, and to that extent it is distinguishable from a mere bilateral arrangement to merge or join in a common endeavour, an undertaking or enterprise J.K. (Bombay) P. Ltd. v. New Kaiser: I-Hind Spg. & Wvg. Co. Ltd., [1970] 40 Comp Cas 689 (SC). Once the court sanctions the amalgamation, the amalgamation is made effective and binding by virtue of statutory power, inter alia, by the transferor to the transferee-company of the whole or any part of the undertaking, property rights and liabilities of the transferor-company by virtue of the provisions of s. 394 of the Act, which are intended to facilitate the process of amalgamation : Sailendra Kumar Ray v. Bank of Calcutta Ltd., [1948] 18 Comp Cas 1 (Cal).</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The expression "property" and "liabilities", which can be transferred on amalgamation, under s. 394(1) have been defined in very wide terms by sub-s. (4)(a) of that section, so as to include "rights and powers of every description" and "duties of every description" respectively. The expression "property" would, therefore, be wide enough to include rights under a contract, including a contract of tenancy. These are co-extensive with the property and right which the transferor-company has in relation to its assets, but could not be wider than what the transferor-company was entitled to enjoy. The rights, property, as indeed the liabilities of the transferor-company, become the rights, property and liabilities of the transferee-</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">company by virtue of the order of vesting made by the court consequent on amalgamation. It is neither an assignment of right or property, nor an assignment of property by the company. It is the transfer of rights, property and liabilities along with the company itself and it is only as a result of confusion of thought that it could be described as an assignment by the company to another person, which is independent and distinct from the company. Such a notion ignores the peculiar position of amalgamation in company law and its true legal incident. It is for historical reasons that the device of amalgamation was built into the company law for facilitating the merger of companies, inter alia, with a view to help restoration of sick units to health, better, more effective and economical management of the corporate sector to ensure continued production, increased employment avenues and generation of revenues. Section 72A of the I.T. Act is one of the incentives for this kind of absorption of one company into another. On amalgamation the transferor-company merges into the transferee-company shedding its corporate shell, but for all purposes remaining alive and thriving as part of the larger whole. In that sense the transferor-company does not die either on amalgamation or on dissolution without winding-up under sub-s. (1) of s. 394. It is not wound up because it has merged into another. Winding-up is unnecessary. It is dissolved not because it has died, or ceased to exist, but because for all practical purposes, it has merged into another forming part of one corporate shell; The dissolution is the death of its independent corporate shell, because a company cannot have two shells. It is, therefore, dissolved because the independent shell or corporate name is superfluous. The company in its essence means its members, who compose it, the assets, property and rights that it had, its liabilities, its undertaking, business or other activity. It is not synonymous with the shell or name. On amalgamation and consequential dissolution all these attributes continue to live as part of a larger entity. The only part that dies is the shell and the name. It is unlike the death of a natural person and yet in a larger and deeper sense the same. It is unlike it, because a natural person, as ordinarily understood, does not survive the death in any physical form.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The transferor-company, however, does survive, in that there is a continuity even after dissolution of its members, its assets, undertaking, etc. The estate of a natural person continues in the hands of the successor for a limited period. In a larger and a deeper sense even a natural person survives his physical death in the continuation of a being, which is supposed to merge in the wider cosmic whole. That, however, is an area of study of life after death, or what is sometimes described as life after life, where the process is of a different dimension and defies description and is, in any event, too deep and wide for the narrow compass of this judgment.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The analogy, therefore, between the death of a natural person and dissolution without winding-up is inappropriate."</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">32. A Division Bench of Calcutta High Court in the case of Castron Technologies Ltd. Vs. Castron Mining Ltd. (supra) dealt with legal consequences flowing from scheme of arrangement under the provisions of the Companies Act of 1956 and held as below:</div><div style="text-align: justify;">"29. In the present case the scheme of arrangement was jointly submitted before the company court for necessary orders in March, 2002. Under the scheme the parties agreed that the C.M.L. would be entitled to pursue and derive the benefit of applications submitted by C.T.L. for the grant of a mining lease upon the scheme being made effective. The mining lease was granted in favour of C.T.L. on June 18, 2002 and was registered in favour of C.T.L. on July 1, 2002. Notices were addressed to the Ministry of Coal, Government of India as also to the Government of Jharkhand in January 2003, indicating that an application had been filed in this court for confirming the scheme of arrangement between the parties herein whereby the mining division of C.T.L. was being transferred to C.M.L. On April 28, 2003, the Central Government informed the Court that it had no objection to the scheme. The scheme was sanctioned by this court only thereafter, on May 13, 2003. A deed of rectification has also been executed in June, 2009 changing the name of the lessee on the mining lease to C.M.L.</div><div style="text-align: justify;">30. We are of the view that the application for the mining lease was transferred and not the mining lease itself. Such a transfer did not require the sanction of the Government. It is only if a mining lease is to be transferred that a prior sanction is required. Admittedly, the scheme was sanctioned with effect from October 31, 2001, when there was no mining lease in favour of C.T.L. Therefore the inevitable inference is that the application for the mining lease was transferred under the scheme."</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">33. In the aforesaid decision, it was held that application for grant of mining lease was transferred under the scheme of arrangement. That was not a case where it required sanction of the Government for such transfer, it being not a case of transfer of mining lease but only an application for grant of mining lease.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">34. In the case of Principal Commissioner of Income Tax (Central)-2 Vs. Mahagun Realtors (P) Ltd., (supra), the Hon'ble Supreme Court considered in detail the statutory scheme and legal consequences flowing upon amalgamation of the companies under the scheme of the Companies Act of 1956 and held as below:</div><div style="text-align: justify;">"18. Amalgamation, thus, is unlike the winding up of a corporate entity. In the case of amalgamation, the outer shell of the corporate entity is undoubtedly destroyed; it ceases to exist. Yet, in every other sense of the term, the corporate venture continues - enfolded within the new or the existing transferee entity. In other words, the business and the adventure lives on but within a new corporate residence, i.e., the transferee company. It is, therefore, essential to look beyond the mere concept of destruction of corporate entity which brings to an end or terminates any assessment proceedings. There are analogies in civil law and procedure where upon amalgamation, the cause of action or the complaint does not per se cease</div><div style="text-align: justify;">- depending of course, upon the structure and objective of enactment. Broadly, the quest of legal systems and courts has been to locate if a successor or representative exists in relation to the particular cause or action, upon whom the assets might have devolved or upon whom the liability in the event it is adjudicated, would fall.</div><div style="text-align: justify;">20. In Saraswati Industrial Syndicate v. Commissioner of Income Tax Haryana, Himachal Pradesh, (1990) Supp (1) SCR 332, the facts were that after amalgamation, the transferee company claimed exemption from tax, of a sum which had been allowed as a trading liability-on accrual basis, in the hands of the transferee company which had ceased to exist. The revenue disallowed that claim; that view was upheld. This court stated that:</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">"In amalgamation two or more companies are fused into one by merger or by taking over by another. Reconstruction or 'amalgamation' has no precise legal meaning. The amalgamation is a blending of two or more existing undertakings into one undertaking, the share holders of each blending company become substantially the share-holders in the company which is to carry on the blended undertakings. There may be amalgamation either by the transfer of two or more undertakings to a new company, or by the transfer of one or more undertakings to an existing company. Strictly 'amalgamation' does not cover the mere acquisition by a company of the share capital of other company which remains in existence and continues its undertaking but the context in which the term is used may show that it is intended to include such an acquisition. See: Halsbury's Laws of England, 4th Edition Vol. 7 Para 1539. Two companies may join to form a new company, but there may be absorption or blending of one by the other, both amount to amalgamation.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">When two companies are merged and are so joined, as to form a third company or one is absorbed into one or blended with another, the amalgamating company loses its entity.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">In M/s General Radio and Appliances Co Ltd v M.A.. Khader (dead) by Lrs., [1986] 2 S.C.C. 656 : (AIR 1986 SC 1218), the effect of amalgamation of two companies was considered. M/s. General Radio and Appliances Co. Ltd. was tenant of a premises under an agreement providing that the tenant shall not sub-let the premises or any portion thereof to anyone without the consent of the landlord. M/s. General Radio and Appliances Co. Ltd. was amalgamated with M/s. National Ekco Radio and Engineering Co. Ltd. under a scheme of amalgamation and order of the High Court under Sections 391 and 394 of Companies Act, 1956. Under the amalgamation scheme, the transferee company, namely, M/s. National Ekco Radio and Engineering Company had acquired all the interest, rights including leasehold and tenancy rights of the transferor company and the same vested in the transferee company.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Pursuant to the amalgamation scheme the transferee company continued to occupy the premises which had been let out to the transferor company. The landlord initiated proceedings for the eviction on the ground of unauthorised sub-letting of the premises by the transferor company. The transferee company set up a defence that by amalgamation of the two companies under the order of the Bombay High Court all interest, rights including leasehold and tenancy rights held by the transferor company blended with the transferee company, therefore the transferee company was legal tenant and there was no question of any sub-letting. The Rent Controller and the High Court both decreed the landlord's suit. This Court in appeal held that under the order of amalgamation made on the basis of the High Court's order, the transferor company ceased to be in existence in the eye of law and it effaced itself for all practical purposes. This decision lays down that after the amalgamation of the two companies the transferor company ceased to have any entity and the amalgamated company acquired a new status and it was not possible to treat the two companies as partners or jointly liable in respect of their liabilities and assets. In the instant case the Tribunal rightly held that the appellant company was a separate entity and a different assessee, therefore, the allowance made to Indian Sugar Company, which was a different assessee, could not be held to be the income of the amalgamated company for purposes of Section 41(1) of the Act. The High Court was in error in holding that even after amalgamation of two companies, the transferor company did not become non-existent instead it continued its entity in a blended form with the appellant company. The High Court's view that on amalgamation 'there is no complete destruction of corporate personality of the transferor company instead there is a blending of the corporate personality of one with another corporate body and it continues as such with the other is not sustainable in law. The true effect and character of the amalgamation largely depends on the terms of the scheme of merger.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">But there cannot be any doubt that when two companies amalgamate and merge into one the transferor company loses its entity as it ceases to have its business. However, their respective rights of liabilities are determined under scheme of amalgamation but the corporate entity of the transferor company ceases to exist with effect from the date the amalgamation is made effective."</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">35. Keeping in view the aforesaid legal position adumbrated in series of decisions referred to hereinabove, dealing with the consequences flowing upon the scheme of arrangement or in the case of amalgamation, we shall now consider the facts of the present case and the consequences flowing upon the scheme of arrangement between M/s. Grasim Industries Limited and M/s. Samruddhi Cement Limited followed by the scheme of amalgamation entered into M/s. Samruddhi Cement Limited and M/s. UltraTech Cement Limited (Respondent No.1-writ petitioner).</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Scheme of arrangement between M/s. Grasim Industries Limited and M/s. Samruddhi Cement Limited was approved by the High Court of Madhya Pradesh vide order dated 31.03.2010. Clause (e) of Section 3, Transfer and Vesting of the Demerged Undertaking in Part II, "Demerger" provided as below:</div><div style="text-align: justify;">"(e) Without prejudice to the generality of the foregoing, upon the coming into effect of the Scheme, all the rights, title, interest and claims of the Demerged Company in any leasehold properties, including the mining leases (including those set out in Schedule III hereof) and the prospecting licenses (including in each case, any applications made therefor) of the Demerged Company in relation to the Demerged Undertaking, shall, pursuant to Section 394(2) of the Act, without any further act or deed, be transferred to and vested in or be deemed to have been transferred to and vested in the Resulting Company with effect from the Appointed Date."</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Importantly, in the Schedule III, "Details of the mining leases pertaining to the Demerged Undertaking", in relation to the State of Rajasthan, under Clause 6.h, it was clearly recorded as below:</div><div style="text-align: justify;">"h. Letter of Intent No. P.2(185) Mines/Group- 2/07 dated October 10, 2007 from Government of Rajasthan for allotting Mining Lease No. 19/06 covering area of 318.78 hectares to Grasim Industries Limited, villages of Ajeetpura, Bhainslana, Kujota & Mehrampur (Nawab), Tehsil Kotputli, Jaipur, Rajasthan."</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">In the order dated 06.05.2010 passed by the Gujarat High Court, approving the scheme of arrangement, in the Schedule III, "Details of the mining leases pertaining to the Demerged Undertaking", in relation to the State of Rajasthan, under Clause 6.h, it was clearly recorded as below:</div><div style="text-align: justify;">"h. Letter of Intent No. P.2(185) Mines/Group- 2/07 dated October 10, 2007 from Government of Rajasthan for allotting Mining Lease No. 19/06 covering area of 318.78 hectares to Grasim Industries Limited, villages of Ajeetpura, Bhainslana, Kujota & Mehrampur (Nawab), Tehsil Kotputli, Jaipur, Rajasthan."</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">It is, thus, clear that Letter of Intent, which was issued to M/s. Grasim Industries Limited was transferred in favour of M/s. Samruddhi Cement Limited by virtue of scheme of arrangement approved by the High Court of Madhya Pradesh and the High Court of Gujarat. It is relevant to note that it was Letter of Intent dated 10.10.2007 issued by the Government of Rajasthan in favour of M/s. Grasim Industries Limited for allotting Mining Lease No. 19/06 covering area of 318.78 hectares situated in the villages Ajeetpura, Bhainslana, Kujota & Mehrampur (Nawab), Tehsil Kotputli, Jaipur, Rajasthan which is subject matter of the present appeal.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">36. Similarly, later on, scheme of amalgamation of M/s. Samruddhi Cement Limited and M/s. UltraTech Cement Limited (Respondent No.1-writ petitioner) was approved by the High Court of Bombay vide order dated 11.06.2010. Heading "Undertaking" for the purpose of amalgamation as defined under Clause (b) of the scheme of amalgamation clearly provided as below:</div><div style="text-align: justify;">"(b) all permits, quotas, rights, entitlements, industrial and other licences, bids, tenders, letters of intent, .................."</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Sub-clause (a) of Clause 4, "Transfer of Assets" under Part II, "Amalgamation of the transferor company with the transferee company" provided as below:</div><div style="text-align: justify;">"(a) Without prejudice to the generality of Clause 3 above, upon the coming into effect of the Scheme and with effect from the Appointed Date, all the estate, assets, properties, rights, claims, title, interest and authorities including accretions and appurtenances comprised in the Undertaking of whatsoever nature and wheresoever situate shall, under the provisions of Sections 391 to 394 and all other applicable provisions, if any, of the Act, without any further act or deed, be and stand transferred to and vested in the Transferee Company and/or be deemed to be transferred to and vested in the Transferee Company as a going concern so as to become, as and from the Appointed Date, the estate, assets, properties, rights, claims, title, interest and authorities of the Transferee Company."</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Order dated 01.07.2010 passed by the Gujarat High Court approving the scheme of amalgamation of M/s. Samruddhi Cement Limited with M/s. UltraTech Cement Limited (Respondent No.1-writ petitioner), amongst other things, provided as below:</div><div style="text-align: justify;">"2. That with effect from the Appointed Date, the entire business and the whole of the undertaking of the Petitioner Company as set out in the Scheme being Annexure "F" to the Petition shall without any further act or deed is transferred to and vested in and/or deemed to be transferred to and vested in the Transferee Company."</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Under the heading "(B) Mining Leases pertaining to Samruddhi Cement Limited, the Transferor Company" in relation to State of Rajasthan, in Clause 6.h it was provided as below:</div><div style="text-align: justify;">"h. Letter of Intent No. P.2(185) Mines/Group- 2/07 dated October 10, 2007 from Government of Rajasthan for allotting Mining Lease No. 19/06 covering area of 318.78 hectares to Samruddhi Cement Limited, villages of Ajeetpura, Bhaislana, Kujota & Mehrampur (Nawab), Tehsil Kotputli, Jaipur, Rajasthan."</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">37. Present is not a case where the scheme of arrangement (demerger) between M/s. Grasim Industries Limited and M/s. Samruddhi Cement Limited followed by the scheme of amalgamation between M/s. Samruddhi Cement Limited and M/s. UltraTech Cement Limited, specifically providing for transfer of Letter of Intent dated 10.10.2007 initially issued in favour of M/s. Grasim Industries Limited, was in contravention of any law in force or opposed to public policy. As has been referred to hereinabove, under the scheme of arrangement (demerger) and scheme of amalgamation, Letter of Intent stood automatically transferred/vested in favour of transferee company and approved by the orders passed by the jurisdictional High Courts from time to time, there was no statutory bar operating under the law against such transfer/vesting of Letter of Intent.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">38. Learned Additional Advocate General appearing for the appellants has relied upon the decision of the Hon'ble Supreme Court in the case of M/s. General Radio and Appliances Co. Ltd. & Others Vs. M.A. Khader (Dead) by LRs (supra). On facts, it was found in that case that there was contravention of statutory scheme of Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 regarding restriction on subletting and/or transfer and assignment of interest as well as of rent agreement.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">39. In another case, in Delhi Development Authority Vs. Nalwa Sons Investment Ltd. and Another (supra), on facts, it was held that transfer of any asset, right or interest through scheme of amalgamation is subject to other statutory provisions which govern the said asset, right or interest.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">As has been held hereinabove that the provisions of the MMDR Act and the rules framed thereunder do not create any bar or legal impediment for transfer/vesting of Letter of Intent under the scheme of arrangement (demerger) and the scheme of amalgamation, it has to be held that there was valid transfer/vesting of Letter of Intent, issued in favour of M/s. Grasim Industries Limited, in favour of Respondent No.1-writ petitioner, M/s. UltraTech Cement Limited.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">40. Learned Additional Advocate General has placed heavy reliance upon the decision of Delhi High Court in the case of M/s. Ispat Industries Ltd. Vs. Union of India & Others (supra).</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">On facts, that was a case where fourth respondent therein made application to the Government for grant of permission to change name in the Letter of Intent or transfer the same in favour of its subsidiary company, which request was accepted by the State Government. Such transfer having been challenged in revision by a third party, revision petition was disposed off holding that Letter of Intent could not be transferred by the State as under the Mineral Concession Rules, only mining lease could be transferred. That was not a case where the legal consequences flowing from the scheme of arrangement (demerger) and the scheme of amalgamation, approved by the jurisdictional High Courts, were examined and held that transfer of Letter of Intent was not permissible. The aforesaid case turns more on its own facts. The aforesaid decision is not an authority for the proposition that in the absence of provisions in the Rules of 1960, transfer of Letter of Intent was impliedly prohibited under the law.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Therefore, the first contention of learned Additional Advocate General deserves to be rejected and is, accordingly, rejected.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">41. It is to be noted that no material has been produced before this Court to show that the operative reason for non-grant of mining lease was based on an opinion formed that Letter of Intent was not transferable under the law. On the contrary, the conduct of the appellant-State shows that the appellants being fully aware of demerger and amalgamation kept on issuing Letter of Intent. Vide letter dated 03.12.2010 addressed in the name of M/s. Grasim Industries Limited, it was informed that the validity of Letter of Intent was extended for a period upto 30.09.2011 on certain conditions. Condition (x) clearly provided that as a result of demerger of the cement business of M/s. Grasim Industries Limited with M/s. Samruddhi Cement Limited followed by amalgamation of M/s. Samruddhi Cement Limited with M/s. UltraTech Cement Limited (Respondent No.1-writ petitioner), necessary stamp and registration fee shall be payable by the company before change of the name of the applicant company. It is, thus, clear that the State was fully aware of the demerger and amalgamation proceedings and that all the assets, rights and liabilities stood transferred in the name of Respondent No.1-writ petitioner-company and it was required to fulfill certain conditions before change of name of the applicant from M/s. Grasim Industries Limited to M/s. UltraTech Cement Limited. It, therefore, lies ill in the mouth of the appellant-State to say that the provisions with regard to change of name as contained in Rule 62 of the Rules of 1960 will not be applicable in the present case. The State clearly gave representation to Respondent No.1-writ petitioner that it was prepared to transfer application for grant of mining lease and had also extended validity of Letter of Intent and Respondent No.1-writ petitioner company was required to pay registration fee and stamp duty. Not only this, Respondent No.1- writ petitioner was required to enhance its production capacity from 3 million tonnes per annum to 4 million tonnes per annum within a period of 18 months. Further, Respondent No.1-writ petitioner was required to submit bank guarantee towards keenness money valid for a period of two years with the forfeiture clause that if the production capacity is not enhanced from 3 million tonnes per annum to 4 million tonnes per annum, keenness money would be forfeited and the lease would be revoked.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">We are at complete loss as to how the State could take such a stand in the Court against its own conduct, particularly when the other party has acted on its representation because it is matter of record and not under dispute that Respondent No.1-writ petitioner had fulfilled the condition of enhancement of its production capacity from 3 million tonnes per annum to 4 million tonnes per annum and also fulfilled the condition of furnishing bank guarantee towards keenness money. The period under which Letter of Intent was further extended vide letter dated 11.12.2014, being fully aware of demerger and amalgamation proceedings. In fact, vide letter dated 24.06.2016, Assistant Mining Engineer, Kotputli itself recommended to the Director, Mines and Geology, Rajasthan for grant of lease/extension of Letter of Intent in favour of Respondent No.1-writ petitioner. The Superintendent Mining Engineer vide its letter dated 27.06.2016 required the Assistant Mining Engineer, Kotputli to submit relevant information. It is, therefore, clear that at no point of time, there was any decision taken to reject the application for grant of mining lease on the ground that Letter of Intent was not transferable upon demerger and amalgamation proceedings. On the contrary, Respondent No.1-writ petitioner was required to fulfill the terms and conditions of Letter of Intent also.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Respondent No.1-writ petitioner has placed on record letter dated 25.01.2017 of the State by which Letter of Intent for grant of mining lease earlier issued in the name of M/s. Vedanta Industries Limited has been permitted to be changed in the name of M/s. Marwar Cement Limited. The aforesaid document has been filed by Respondent No.1-writ petitioner along with additional affidavit in the appeal. In its counter, this position is sought to be justified by the State that Rule 62 of the Rules of 2016 permit change of name and in case of demerger and amalgamation, such change of name is not permissible in law. It is not the case of the State that M/s. Vedanta Industries Limited itself changed the name of the company to M/s. Marwar Cement Limited requiring change in name under Rule 62 of the Rules of 2016. Therefore, it is clearly a case of transfer of Letter of Intent whereas in the present case, Letter of Intent issued in favour of M/s. Grasim Industries Limited stood vested in Respondent No.1-writ petitioner by operation of law, as has been elaborately dealt with by us hereinabove.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">42. The second ground, on which the order passed by the learned Single Judge, allowing writ petition of Respondent No. 1, is assailed is that application for grant of mining lease which was made to the State Government by the transferor company i.e. M/s. Grasim Industries Limited attained its natural demise in view of operation of sunset clause with effect from 11.01.2017 upon coming into force of Section 10A inserted in the MMDR Act vide the Mines and Minerals (Development and Regulation) Amendment Act, 2015 (No. 10 of 2015). Learned Additional Advocate General vehemently contended that the application for grant of mining lease became automatically ineligible in view of the provisions contained in sub-section (1) of Section 10A of the MMDR Act. It is argued that even though earlier Letter of Intent was issued in favour of the transferor company, i.e. M/s. Grasim Industries Limited, extended from time to time, the same could not get crystallised as Respondent No.1-writ petitioner failed to fulfill the terms and conditions of Letter of Intent. Therefore, right to get the mining lease executed on the fulfillment of the terms and conditions of Letter of Intent did not exist and, therefore, in such a case, it is argued, Clause (c) of sub-section (2) of Section 10A of the MMDR Act has no application in the present case.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The MMDR Act was extensively amended vide the Mines and Minerals (Development and Regulation) Amendment Act, 2015 (No. 10 of 2015). A new section, namely, Section 10A was inserted which dealt with the rights of existing concession holders/applicants. As the submissions of learned Additional Advocate General are primarily based on the construction of the provisions contained in newly inserted Section 10A of the MMDR Act, it would be appropriate to extract the provisions of Section 10A of the MMDR Act as below:</div><div style="text-align: justify;">"[10A. Rights of existing concession-holders and applicants.―(1) All applications received prior to the date of commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015, shall become ineligible. (2) Without prejudice to sub-section (1), the following shall remain eligible on and from the date of commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015―</div><div style="text-align: justify;">(a) applications received under section 11A of this Act;</div><div style="text-align: justify;">(b) where before the commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015 a reconnaissance permit or prospecting licence has been granted in respect of any land for any mineral, the permit holder or the licensee shall have a right for obtaining a prospecting licence followed by a mining lease, or a mining lease, as the case may be, in respect of that mineral in that land, if the State Government is satisfied that the permit-holder or the licensee, as the case may be,―</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(i) has undertaken reconnaissance operations or prospecting operations, as the case may be, to establish the existence of mineral contents in such land in accordance with such parameters as may be prescribed by the Central Government;</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(ii) has not committed any breach of the terms and conditions of the reconnaissance permit or the prospecting licence;</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(iii) has not become ineligible under the provisions of this Act; and</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(iv) has not failed to apply for grant of prospecting licence or mining lease, as the case may be, within a period of three months after the expiry of reconnaissance permit or prospecting licence, as the case may be, or within such further period not exceeding six months as may be extended by the State Government;</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">[Provided that for the cases covered under this clause including the pending cases, the right to obtain a prospecting licence followed by a mining lease or a mining lease, as the case may be, shall lapse on the date of commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2021:</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Provided further that the holder of a reconnaissance permit or prospecting licence whose rights lapsed under the first proviso, shall be reimbursed the expenditure incurred towards reconnaissance or prospecting operations in such manner as may be prescribed by the Central Government;]</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(c) where the Central Government has communicated previous approval as required under sub-section (1) of section 5 for grant of a mining lease, or if a letter of intent (by whatever name called) has been issued by the State Government to grant a mining lease, before the commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015, the mining lease shall be granted subject to fulfilment of the conditions of the previous approval or of the letter of intent within a period of two years from the date of commencement of the said Act:</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Provided that in respect of any mineral specified in the First Schedule, no prospecting licence or mining lease shall be granted under clause (b) of this sub-section except with the previous approval of the Central Government.] [(d) in cases where right to obtain licence or lease has lapsed under, clauses (b) and (c), such areas shall be put up for auction as per the provisions of this Act:</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Provided that in respect of the minerals specified in Part B of the First Schedule where the grade of atomic mineral is equal to or greater than the threshold value, the mineral concession for such areas shall be granted in accordance with the rules made under section 11B.]"</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">43. The newly inserted Section 10A of the MMDR Act is in two parts. First part is contained in sub-section (1) which provides that all applications received prior to the date of commencement of the Mining and Minerals (Development and Regulation) Amendment Act, 2015 shall become ineligible. Thus, by operation of law, it is vividly clear that applications received prior to the appointed date stood rejected/rendered automatically ineligible/attained natural demise.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The second part of Section 10A of the MMDR Act as contained in sub-section (2), however, carves out exceptions to sub-section (1). Categories (a), (b) and (c) of sub-section (2) of Section 10A, exhaustively enumerated therein, save certain applications from being rendered ineligible by operation of law. Apparently, case of Respondent No.1-writ petitioner is not covered either under clause (a) and (b) of sub-section (2) of Section 10A of the MMDR Act. However, clause (c) of sub-section (2) of http://Section 10A of the MMDR Act is relevant because that deals with a situation where the Central Government has communicated previous approval as required under sub-section (1) of Section 5 for grant of mining lease, or if a Letter of Intent (by whatever name called) has been issued by the State Government to grant a mining lease, before the commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015. Present is not a case covered under sub-section (1) of Section 5 of the MMDR Act. However, second part of clause (c) of sub-section (2) of Section 10A of the MMDR Act saves those applications where Letter of Intent has been issued by the State Government prior to commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015. Thus, in a case where Letter of Intent has been issued by the State Government to grant a mining lease prior to commencement of the Mines and Minerals (Development and Regulation) Amendment Act, 2015, operation of sub-section (1) of Section 10A of the MMDR Act stands excluded and the consequences provided therein would not follow. Thus, by operation of law, application would not become ineligible. It may be a different thing altogether that for some other reason, the application is not found acceptable and the same is liable to be rejected. It is important to note that clause (c) of sub-section (2) of Section 10A of the MMDR Act not only excludes application of sub-section (1), but at the same time, creates an obligation on the State and a corresponding right on the applicant for grant of mining lease, subject to fulfillment of the conditions of the previous approval or of the Letter of Intent, within a period of two years from the date of commencement of the Act.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">It may be a different thing altogether that an application for grant of mining lease is liable to be rejected for any other reason viz., failure to fulfill the terms and conditions of Letter of Intent, but the application remains pending until it is rejected and is not rendered ineligible by operation of sunset clause. It is not in dispute between the parties that sunset clause rendering pending applications ineligible by operation of law, came into force with effect from 11.01.2017.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">In taking the aforesaid view on the interpretation of the provisions contained in Section 10A of the MMDR Act, this Court relies upon the judgment of the Hon'ble Supreme Court in the case of Bhushan Power and Steel Limited Vs. S.L. Seal, Additional Secretary (Steel and Mines), State of Odisha and Others (supra) as also order passed by Calcutta High Court in the case of M/s. Kusum Marketing Ltd. & Another Vs. the State of West Bengal & Others (supra).</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">44. What is not in dispute in view of the respective pleadings, affidavits and counter affidavits of the parties is that M/s. Grasim Industries Limited had applied for grant of mining lease on 05.06.2007 and first Letter of Intent was issued in its favour on 10.10.2007. The pleadings in the writ petition further show that Letter of Intent was extended from time to time. Therefore, present case is covered by clause (c) of sub-section (2) of Section10A of the MMDR Act and not by sub-section (1) of Section 10A of the MMDR Act. As we shall deal, little later, with another aspect of the matter that main operative reason for not granting mining lease was that the proposed mining area included certain charagah (pasture) land and not for any other reason, much less those, which have been now invented while opposing the relief sought by Respondent No.1-writ petitioner, the second argument of learned Additional Advocate General that the application for grant of mining lease was rendered ineligible by operation of law in view of sunset clause cannot be accepted and liable to be rejected and the same, is accordingly, rejected.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">45. It is an admitted position on record that vide notification dated 06.05.2006, an area ad-measuring 318.78 hectares near Village Mohanpura, Jodhpura, Tehsil Kotputali, District Jaipur was notified by the State Government as open and vacant for grant of lease for mining of limestone. The said notification was issued in view of the provisions contained in Rule 59 of the Rajasthan Minor Mineral Concession Rules, 1986. Rule 59 of the Rules of 1960 provides for availability of area for regrant to be notified. Having so declared regarding availability of an area of 318.78 hectares, applications were invited vide notification dated 26.05.2007 for grant of mining lease of cement grade limestone in respect of the entire area of 318.78 hectares. It would, thus, be clear that the State itself declared the entire area open for grant of mining lease and having invited applications, it was expected of all the intending applicants to apply for grant of mining lease. Letter of Intent was issued in favour of M/s. Grasim Industries Limited on 10.10.2007. Letter of Intent contained following four conditions:</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(i) Obtaining environmental clearance as per notification dated 14.09.2006 issued by the Ministry of Environment and Forest, Government of India;</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(ii) Production of mining lease plan as well as mining closure plan approved by Indian Bureau of Mining;</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(iii) Submission of statement with regard to khatedari land in terms of Rule 22(3)(h) of the Rules of 1960; and</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(iv) Submission of NOC from the Forest Department.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">46. It is not in dispute that when the Letter of Intent was extended, NOC was granted by the Forest Department on 11.08.2008; approval of mining plan had taken place on 22.12.2008; environmental clearance was granted on 06.05.2010. Thereafter, a letter of compliance dated 07.07.2010 was submitted by M/s. Samruddhi Cement Limited to the effect that all conditions as per LoI dated 10.10.2007 had been fulfilled. On 07.10.2010, Assistant Mining Engineer sent recommendations to the Director, Mines and Geology Department stating that the company had complied with all the conditions of LoI and, therefore, mining lease could be granted in its favour. Thereafter, LoI was further extended on 03.12.2010 with following three additional conditions:</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(i) Increasing capacity of plant from 3 MT per annum to 4 MT per annum;</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(ii) Keenness money to be deposited @ Rs. 2 crores per MT per annum towards establishment of cement plant; and</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(iii) The Company would deposit stamp and registration fee towards change of name upon demerger of cement business of M/s. Grasim Cement Limited into M/s. Samruddhi Cement Limited and also regarding amalgamation of M/s. Samruddhi Cement Limited into M/s. UltraTech Cement Limited (Respondent No. 1- writ petitioner).</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Though there was some dispute with regard to leviability of stamp duty and cases were filed by Respondent No. 1-writ petitioner in the High Court and interim orders were also passed in its favour, later on a letter of all compliances was submitted on 06.06.2014 stating that all conditions of LoI extension dated 03.12.2010 had been complied with. However, since with regard to condition (x), interim order was passed in favour of Respondent No.1-writ petitioner, request was made for grant of mining lease. Thereafter, a letter along with an affidavit was submitted on 06.09.2014 before the Government undertaking that as the issue with regard to payment of stamp duty is pending consideration before the High Court and Respondent No.1-writ petitioner is enjoying interim order, the Company shall abide by the directions issued by the Court and it also undertook to pay the stamp duty as per the final decision that may be taken by the Court in the pending matters. On 11.12.2014, the Government extended the period of Letter of Intent for another six months, during which period, Respondent No.1-writ petitioner deposited stamp duty with regard to demerger and amalgamation, taking benefit of Amnesty Scheme and thus, all the writ petitions were accordingly withdrawn.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">47. On 17.01.2015, Respondent No.1-writ petitioner submitted letter to the effect that it had made all compliance and also enclosed certificates of the Collector (Stamps), Jaipur showing payment of complete stamp duty with regard to demerger and amalgamation. On 16.05.2016, Respondent No.1-writ petitioner submitted letter of compliance clearly stating that the mining lease area was consisting of 1.38 hectares of charagah land spread all over the mining lease area and, therefore, it was not possible to reduce the charagah land from the mining lease area. However, an undertaking was given by Respondent No.1-writ petitioner on affidavit that it will not start mining activities in the aforesaid charagah land till permission is granted from the State Government. The said affidavit has been annexed as Annexure-21 with the writ petition. The affidavit clearly stated that no mining operation would be done in the area of charagah land without prior permission of the State Government. It is relevant to note that vide letter dated 24.06.2016, the Assistant Mining Engineer recommended to the Director, Mines and Geology Department for grant of mining lease in favour of Respondent No.1-writ petitioner. The Director, Mines and Geology Department sought certain details vide letter dated 27.06.2016 to which the Assistant Mining Engineer replied on 19.07.2016 stating that a portion of charagah land existed in the proposed mining lease area. It also clearly stated that an affidavit was submitted that no mining activities would be carried out in the charagah land without prior permission of the State Government.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">48. The provisions of the MMDR Act or the Rules of 1960 nowhere deals with charagah land. Conditions incorporated in Rule 27 of the Rules of 1960 also do not include any condition with regard to charagah land, though under clause (h) thereof, certain prohibited areas out of the mining area have been carved out where law prohibits lessee from carrying or allowing to be carried on, any mining operation at any point within a distance of fifty metres from any prohibited area like railway line, except under and in accordance with the written permission of the railway administration concerned or under or beneath any ropeway or any ropeway trestle or station, except under and in accordance with the written permission of the authority owning the ropeway or from any reservoir, canal or other public works, or buildings, except under and in accordance with the previous permission of the State Government.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">49. The statutory performa of application for grant of mining lease (Form-I) referable to Rule 22 of the Rules of 1960 also does not contain any stipulation with regard to charagah land (pasture land).</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">On 14.09.1981, a mining lease for mineral limestone and marble was granted in favour of one Rameshwar Bajaj for an area of 415.03 hectares and that was subsequently transferred in the name of National Limestone Company Private Limited vide transfer deed dated 24.02.1986. Copy of the transfer deed dated 24.02.1986 has also been placed on record along with the counter affidavit as Annexure-RA-2. It has also been stated that National Limestone Company Private Limited subsequently surrendered approximately 318.78 hectares of land to the State Government in the year 2005, which was subsequently notified by the State Government for which notification dated 06.05.2006 was issued which was followed by notification dated 26.05.2007, referred to above, inviting applications for mining of limestone over the area of 318.78 hectares. By disclosing these facts, it has been firmly asserted by Respondent No.1-writ petitioner that the entire area without exclusion of any charagah land was thoroughly excavated and completely exploited since 1981 by more than one lease holders and, therefore, there is hardly any grazing land available. In support of this submission, google maps of the year 2016 as well as 2017 have also been annexed with the same counter affidavit. According to Respondent No.1-writ petitioner, the stated area on the site is no more charagah land and the same cannot be used for charagah purposes in any case.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">It is worthwhile to note that in the environmental clearance granted vide letter dated 06.05.2010 by the Ministry of Environment and Forests (Annexure-8 of the writ petition) it was stated that the total mining lease area of the project is 318.78 hectares, out of which 311.4 hectares is agriculture land, 1.5 hectares is wasteland and 5.88 hectares is others (Charnot land). It also states that no forest land and no grazing land is involved in the project. It further states that the area proposed for mining is only 73.62 hectares and an area of 4.7 hectares is kept for storage of topsoil, 2.44 hectares for waste dumps, 3.2 hectares for infrastructure, 50 hectares for green belt and 184.82 hectares is for other purposes. It has also been stated therein that Sota River (2.25 Km NW) and Sabi River (5.25 Km S) are flowing in the buffer zone of the mine and the drainage pattern of the study area is controlled by both the seasonal rivers. This, however, is disputed question of fact because in letter dated 07.10.2010 of the Assistant Mining Engineer addressed to the Director, Mines and Geology Department, it has been stated that khasra verification was got conducted through surveyor and according to spot inspection conducted by the surveyor, the area contains charagah land also. The statement of fact in the affidavit regarding allotment of 0.47 hectares of land for establishment of a grid station by KVGSS is not in dispute.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">50. The mining plan shows that the mining operations are to be undertaken only on a part of the area comprised within the mining lease and not on the entire area. Provisions contained in Rules 22 and 27(1)(h) of the Rules of 1960 clearly show that even if the land is included in the mining lease or there is prohibited area where mining operations cannot be undertaken, even then such area is included in the mining lease or the mining plan, which excludes many areas within the lease area where no mining operations could be allowed. Furthermore, Rule 27(2), clause (d) of the Rules of 1960 provides that a mining lease may contain a condition in the form of restriction of surface operations in any area prohibited by any authority. Therefore, under the scheme of MMDR Act and the Rules of 1960, while granting mining lease over an area, the lease may contain various conditions, restrictions with regard to mining operations over certain parts of the mining lease area. Respondent No.1-writ petitioner's case has been that once the area of 318.78 hectares was notified and notification for grant of mining lease was notified, Respondent No.1-writ petitioner had no option but to submit its application for grant of mining lease in respect of the area and get mining plan approved from the competent authority in accordance with the statutory scheme. The power to increase or decrease the area of mining does not rest with the applicant, but that power vests with the competent authority, as is clear from the provisions contained in Rule 26 of the Rules of 1960. Moreover, Rule 22A of the Rules of 1960 clearly provides that mining operations have to be in accordance with the mining plan. The mining plan may exclude many areas as would be clear from letter of environmental clearance dated 06.05.2010 (Annexure-8 of the writ petition). It is pertinent to mention here that when the State in its additional affidavit came out with the case that the mining plan of Respondent No.1-writ petitioner does not exclude charagah land of 1.38 hectares from mining operations, Respondent No.1-writ petitioner has stated in its additional affidavit that the area of charagah land has not been included in the mining plan and in support of this contention, approved map of the mining plan has been filed as Annexure-RA-7. It appears that initially at the time of submitting application for grant of mining lease, M/s. Grasim Industries Limited had filed an affidavit on 26.05.2006. Clause 6 of the said affidavit stated that in the applied area, there was no charagah land. It was further stated that if there was any charagah land in the applied area, the applicant would submit NOC from the State Government. Referring to Circular dated 21.07.2008, it has been the case of the State that since no NOC was submitted by Respondent No.1-writ petitioner and it also did not exclude charagah land ad-measuring 1.38 hectares from the mining lease area applied by it, the lease was not granted. We have perused circular dated 21.07.2008 which shows that if there is a charagah land existing in the applied area then no objection certificate is to be obtained from the District Collector/Government. This was reiteration of earlier instructions dated 29.12.1994.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">51. The provisions contained in Rule 7 of the Rules of 1955 provides for allotment or setting apart of pasture land. It provides that the Collector may, in consultation with the Panchayat, change the classification of any pasture land, as defined in sub-section (28) of Section 5 of the Rajasthan Tenancy Act, 1955 or any pasture land set apart under Section 92 of the Rajasthan Land Revenue Act, 1956, as unoccupied culturable Government land (Sawai Chak), for allotment for agricultural or any non-agricultural purposes. As it is the stand of Respondent No.1-writ petitioner and is also permissible under the scheme of the Rules of 1960 that no pasture area is being included for the purpose of mining operation, in such an eventuality, grant of mining lease could be considered by imposing appropriate conditions including restrictions on mining operations over pasture areas as a whole, even though it is included within the larger mining lease area. Respondent No. 1-writ petitioner expressed its inability to exclude charagah land ad-measuring 1.38 hectares spread within the mining lease area vide letter dated 16.05.2016 attaching therewith an undertaking that it shall not start mining activities in the charagah land till permission is granted from the State Government.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">52. Thus, where the environmental clearance itself allows mining operations on a limited area and Respondent No.1-writ petitioner also gave undertaking on affidavit not to undertake any mining operations over the charagah land which was only 1.38 hectares out of total lease area of 318.78 hectares, inaction on the part of the appellants on the ground that charagah land has not been excluded from the mining area appears to be arbitrary and unwarranted. The entire area was notified and applications were invited for grant of mining lease. Therefore, keeping the application for grant of mining lease pending without any order passed on it on the ground of there being charagah land included in the lease area and non-submission of NOC, does not appear to be fair, particularly when charagah land was not included for the purposes of mining operations. The requirement of NOC from the authority would be necessary only when the charagah land is included for the purpose of mining operations. If there is no prohibition of inclusion of charagah land in the entire mining lease area which comprises of many other parts where no mining operation is carried out under the mining plan, non-grant of NOC could not be made a basis to deny execution of mining lease.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">53. It is quite apparent that though Respondent No.1-writ petitioner had complied with all the conditions of Letter of Intent and many other conditions included subsequently while extending Letter of Intent, the appellants developed cold feet on the basis that the law prohibited grant of mining over an area which comprises of charagah land ignoring that Respondent No.1-writ petitioner had given undertaking along with an affidavit not to carry out any mining operations over charagah land without grant of NOC. Ultimately after passing of the sunset clause with effect from 11.01.2017, the State did not proceed further on an erroneous assumption of law that after passing of sunset clause with effect from 11.01.2017, the application for grant of mining lease attained natural demise. This aspect has already been considered by us hereinabove and it has been held in favour of Respondent No.1-writ petitioner and against the appellant-State.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><b>54. The objection with regard to grant of mining lease over an area of charagah land is essentially based on the judgment of the Hon'ble Supreme Court in the case of Jagpal Singh and Others Vs. State of Punjab and Others (supra). The State proceeded to issue various circulars on 25.04.2011, 13.12.2011 and 17.09.2013. Circular issued on 21.07.2008 required that NOC will have to be obtained from the competent authority. These circulars, issued in view of the judgment of the Hon'ble Supreme Court in the case of Jagpal Singh and Others Vs. State of Punjab and Others (supra), restricted use of charagah land (pasture land) for private or commercial purposes. In circular dated 25.04.2011, it was stated that allotment of charagah land for private and commercial purposes shall not be made and where allotment of charagah land for public purposes or in public interest become necessary, State's approval through the District Collector shall be obtained. In a subsequent circular dated 13.12.2011, it was clarified that in respect of applications for grant of mining lease submitted before 25.04.2011, mining lease would be granted only after approval of the revenue department and in case NOC is not issued, the area comprising charagah land shall be excluded.</b></div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><b>55. Subsequently, another circular was issued on 17.04.2013 followed by circular dated 17.09.2013 in continuation of earlier circulars. Circular dated 17.09.2013 sought to clarify that as per the opinion of the Law Department, grant of mining operations by declaring another land in place of pasture land is against the directions of the Hon'ble Supreme Court. It also clarified that in future, such a course of action of getting another parcel of land declared as charagah land in place of charagah land for grant of mining activities should not be permitted.</b></div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><b>56. The Hon'ble Supreme Court in the case of Jagpal Singh and Others Vs. State of Punjab and Others (supra), held as below:</b></div><div style="text-align: justify;"><b>"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 regularising 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."</b></div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">57. The first affidavit submitted by M/s. Grasim Industries Limited at the time of submitting its application was to the effect that if charagah land is existing in the mining lease area, NOC would be obtained from the competent authority. That would only mean that if the applicant intends to carry out mining operations and exploits charagah land, NOC would be required. However, as the transferee company has clearly given undertaking supported by its affidavit on 16.05.2016 that it shall not start mining activities in the area comprised of charagah land until NOC/permission from concerned authority is obtained, there was no legal impediment in grant of mining lease after imposing appropriate conditions. It is worthwhile to mention that in order dated 03.04.2018 passed in favour of M/s. Wonder Cement Limited and order dated 12.04.2019 passed in favour of M/s. Shree Cement Limited (both the orders filed in the appellate proceedings), there is clear condition imposed that no mining activities would be permitted in the leased area. Thus, in view of the undertaking given by Respondent No.1-writ petitioner, there was no legal impediment in granting mining lease by incorporating similar condition in respect of Respondent No.1-writ petitioner as well.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">58. On the aspect as to whether there existed charagah land at the time of inviting applications for grant of mining lease over the entire stretch of land admeasuring 318.78 hectares, as we have observed hereinabove, there exists a dispute. While Respondent No.1-writ petitioner has come out with a case that the land was under excavation and exploitation since 1981 with different lease holders until it was surrendered in the year 2005, supported by certain google maps and this fact also stated in environmental clearance letter dated 06.05.2010, it has been stand of the State that there exists charagah land to the extent of 1.38 hectares as is reflected from letter dated 07.10.2010 of the Assistant Mining Engineer, Kotputli. According to this letter, the applied area includes charagah land. Though not impossible, it is highly improbable that while carrying out mining operations and exploiting the mining lease area since 1981 till 2005, earlier lease holders would have left the area of 1.38 hectares as charagah land. This is more so when State has not come out with any material to show that while granting leases to previous lease holders since 1981, a condition was imposed not to carry out mining operations on charagah land. On the other hand, it appears that there was no such restriction imposed earlier at least till 2005 and it was only thereafter that it was decided not to allow mining operations on charagah land. Moreover, Respondent No.1- writ petitioner has submitted google maps also, which cannot be easily brushed aside. Over and above all, letter dated 06.05.2010 granting environmental clearance also records the same fact that there is no grazing land involved in the project. Therefore, a fresh survey of a team comprising of officials of Revenue and Mining Departments is necessary.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">59. Yet another aspect of the matter is that there exists a dispute as to whether Respondent No.1-writ petitioner had included charagah land of 1.38 hectares in its mining plan. Respondent No.1-writ petitioner has given an affidavit that charagah land is not included in the mining plan. However, the State has taken a stand that charagah land is included in the approved mining plan. In para no. 6 of the counter to affidavit submitted by Respondent No.1-writ petitioner, it has been vehemently contended that the area of charagah has not been included in the mining plan, referring to mining plan (Annexure RA-7). It has also been averred that charagah area has already been exploited by previous lessees. Therefore, it is argued that the said area now comes under the broken up area and there is no question of existence of pasture land. We do not find the mining plan submitted by Respondent No.1-writ petitioner. However, the State has submitted the mining plan of Respondent No.1-writ petitioner in appellate proceedings. In that mining plan, Khasra No. 318 is stated to be charagah land. As per survey field report dated 06.07.2016 annexed with letter dated 19.07.2016 (Annexure-25), prepared by Patwari of Panchayat Samiti Bhainslana, 1.01 hectares of Khasra No. 318, 0.05 hectares of Khasra No. 316 and 0.32 hectares of Khasra No. 192, total admeasuring 1.38 hectares is charagah land. Though Khasra No. 318 has been shown in Respondent No.1-writ petitioner's mining plan annexed by the State along with the appeal, all other Khasra numbers, are not indicated within mining plan. Thus, the statement made by Respondent No.1-writ petitioner as well as State are partially correct and partially incorrect. It appears that only 1.01 hectares of land in Khasra No. 318 is included in the mining plan. It is clear from the mining plan that this is not contiguous area or to say that it is scattered all over, but only at the corner of the area included in mining plan.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">60. The Rules of 1955 were amended vide notification dated 31.05.2017 by the amendment carried out in sub-rule (1) of Rule 7 of the Rules of 1955. After the existing first proviso and before the existing second proviso to sub-rule (1), a new proviso was inserted as below:</div><div style="text-align: justify;">"Provided further that the classification of pasture land shall not be changed as unoccupied culturable government land (Sawai Chak) for mining purposes without the prior permission of the State Government. The permission by the State Government shall be granted only if applicant has surrendered equal area of khatedari land in favour of the State Government in the same village or nearby village within the same Panchayat and has deposited development charges for the development of such surrendered land as pasture land. The development charges for the year 2017-2018 shall be rupees fifty thousand per bigha or part thereof and for subsequent year it shall be increased by five percent every year. The Development charges so deposited may also be used for the welfare of the cattle of the village by the village Panchayat with prior approval of the District Collector. The land so classified as unoccupied culturable government land (Sawai Chak) shall always remain and treated as government land for all purposes."; and"</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">61. Thus, in any case, even if there existed charagah land, the new proviso added to Rule 7(1) of the Rules of 1955 allowed classification of pasture land to be changed as unoccupied land for mining purposes. The condition, however, is that such a change would not be permissible without prior permission of the State Government. Moreover, the proviso further states that such permission could be granted by the State Government only if the applicant has surrendered equal area of khatedari land in favour of the State Government in the same village or nearby village within the same Panchayat and has deposited development charges for development of such surrendered land as pasture land. Respondent No.1-writ petitioner has placed on record an application submitted by it on 13.06.2017 to the District Collector, District Jaipur surrendering equivalent area of 1.38 hectares of land in village Bhainslana seeking change in classification of the pasture land in terms of newly added proviso to Rule 7(1) of the Rules of 1955. Letter dated 04.09.2017 of Sub Divisional Officer Kotputli, District Jaipur has also been annexed by which Tehsildar, Kotputli was directed to complete the enquiry and submit the report. According to Respondent No.1-writ petitioner, after change in law by addition of new proviso to Rule 7(1) of the Rules of 1955, it having surrendered equivalent area of land, there was no impediment in allowing change of classification, but the District Collector has not passed any order. On this aspect, the State has not come out with any stand, nor has disclosed in any of its affidavits, the fate of Respondent No.1-writ petitioner's application dated 13.06.2017. It appears that on an erroneous assumption of law that after passing of sunset clause, Respondent No.1-writ petitioner's application for grant of mining lease attained natural demise, the District Collector and the State presumably have not proceeded with the aforesaid application.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">62. Since we have held that on account of Letter of Intent having been issued in favour of Respondent No.1-writ petitioner, its application fell outside the mischief of sub-section (1) of Section 10A of the MMDR Act, in view of provision contained in clause (c) of sub-section (2) of Section 10A of the MMDR Act, keeping aside all other disputes, Respondent No.1-writ petitioner's application in terms of newly added proviso to Rule 7(1) of the Rules of 1955, ought to be processed and appropriate order ought to be passed, which has also not been done.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">63. In para no. 6 of the counter to affidavit, Respondent No.1- writ petitioner has categorically stated that earlier in tender for grant of mining lease for limestone block 4GII-A, near Village Tadas-Bairas, Tehsil Nagaur, issued for the year 2017-18, the offered land included charagah land also and tender document also dealt with charagah land stating that mining in charagah land will be carried out as per Government's notification dated 31.05.2017. Relevant pages of the tender document have also been annexed with the counter to affidavit filed by Respondent No.1-writ petitioner. In the absence of any denial to this statement of fact by the State in its subsequent affidavits, it is clear that in cases where the area proposed to be covered under the lease include charagah land, subject to compliance of newly added proviso to Rule 7(1) of the Rules of 1955, mining would be permissible. Along with the counter to affidavit, Respondent No.1- writ petitioner has placed on record letter dated 05.12.2016 of the Director, Mines and Geology Department, Government of Rajasthan, addressed to the Secretary, Department of Mines and Petroleum, Government of Rajasthan, wherein it has been clearly stated regarding compliance of all conditions of Letter of Intent by Respondent No.1-writ petitioner. That memo clearly states that Respondent No.1-writ petitioner has already submitted an undertaking that it will not carry out any mining activities unless permission is granted by the State Government. By the said letter, recommendation was made for grant of mining lease in favour of Respondent No.1-writ petitioner. However, no decision was taken in the matter by the State Government.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">64. We, thus, find that though a part of the land was included in the mining plan, i.e. 1.01 hectares of land comprised in Khasra No. 318 as charagah land, Respondent No.1-writ petitioner gave clear undertaking on affidavit that it will not carry out any mining operations over the said land. Further, we have also held that NOC would be required in a case where charagah land is proposed to be included for mining activities. Therefore, there was otherwise no impediment in grant of mining lease in favour of Respondent No.1-writ petitioner as it was granted in favour of M/s. Wonder Cement Limited and M/s. Shree Cement Limited by excluding charagah land from mining operation area.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">It is also pertinent to mention at this stage that similar relief has been granted in the case of M/s. NU Vista Limited Vs. Union of India & Others (supra) by the Single Judge of this Court. In the appeal preferred by the State also, order has been passed by the Division Bench of this Court on 04.03.2022 in D.B. Civil Special Appeal (Writ) No. 998/2021 regarding undertaking of the petitioner in that case that it shall not carry out any mining activities in the charagah land which may fall in mining area.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">65. In view of above considerations, the direction of the learned Single Judge for grant of mining lease in favour of Respondent No.1-writ petitioner by excluding the area covered under charagah for mining activities on the basis of the undertaking given by Respondent No.1-writ petitioner does not warrant any interference by this Court. It is, however, made clear that Respondent No.1- writ petitioner shall not be allowed to carry out mining operation over the land identified as charagah land and condition to that effect would be inserted in the grant of mining lease, as has been inserted in the leases granted in favour of M/s. Wonder Cement Limited, M/s. Shree Cement Limited and M/s. NU Vista Limited. We also clarify that this judgment shall not come in the way of the State Government/District Collector in deciding Respondent No.1- writ petitioner's application dated 13.06.2017 for change of classification under newly added proviso to Rule 7 of the Rules of 1955, on its own merits and in accordance with law.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">66. The appeal is, accordingly, dismissed.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">67. No order as to costs.</div>Claim for Commonshttp://www.blogger.com/profile/06082132405339033351noreply@blogger.com0tag:blogger.com,1999:blog-5162401328122846212.post-30812286529068769782022-10-19T10:46:00.003+05:302022-10-19T10:46:43.679+05:30Delhi District Court in Shakur Pur Jatav Samaj Kalyan Samiti vs. Surender Kumar Chadha & Ors. [13.10.2022]<div style="text-align: center;">IN THE COURT OF SH. VIKRAM, ADDL. SESSIONS </div><div style="text-align: center;">JUDGE-02-CUM-SPECIAL JUDGE-NDPS ACT, NORTH </div><div style="text-align: center;">WEST DISTRICT, ROHINI COURTS, DELHI </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Misc. Criminal No. 09/2019 </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">SHAKUR PUR JATAV SAMAJ KALYAN SAMITI </div><div style="text-align: justify;">(Through Sh. Jaipal Singh, Vice President </div><div style="text-align: justify;">& Authorized Representative) </div><div style="text-align: justify;">WZ-101, Shakurpur Village, </div><div style="text-align: justify;">Delhi-110034. <span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span>.... Complainant </div><div style="text-align: center;">Vs. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">1. Sh. SURENDER KUMAR CHADHA
M/s. Shakti Timber </div><div style="text-align: justify;">2. Smt. GULSHAN CHADHA
W/o Sh. Surender Kumar Chadha
Sector-8, Rohini, Delhi-110085. </div><div style="text-align: justify;">3. Sh. RAVI ANAND
S/o Late Sh. Ayodhaya Nath Anand
Shakti Timber Store </div><div style="text-align: justify;">4. Sh. BRIJ MOHAN ANAND
S/o Late Sh. Ayodhaya Nath Anand
Shakti Timber Store </div><div style="text-align: justify;">All At : </div><div style="text-align: justify;">WZ-333, Shakurpur Village, </div><div style="text-align: justify;">Near Yadav Market, </div><div><div style="text-align: justify;">Delhi-110034.
<span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span>.... Respondents/Accused</div><div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Date of Institution : 27.03.2019 </div><div style="text-align: justify;">Date when judgment was reserved : 13.10.2022 </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Date when judgment is pronounced : 13.10.2022 </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">ORDER ON SUMMONING</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">1. This is a complaint filed by the complainant under Section 200 Cr.P.C for summoning the accused persons namely Sh. Surender Kumar Chadha, Smt. Gulshan Chadha, Sh. Ravi Anand and Sh. Brij Mohan Anand for the commission of offence punishable under Section 3 (1) (iv) (v) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 read with Sections 420/506/34 IPC.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">2. The allegations of the complainant are that the property/land bearing No. WZ-333, out of Khasra No. 30/4/11 measuring about 500 sq. yards, situated in the abadi of Lal Dora, Village Shakurpur, Delhi (land in question) was alloted to Harizan Gram Sabha in the year 1954 and after allotment of land to Gram Sabha, the said land remained under the physical possession and use of Harizan Gram Sabha duly represented by Harizan Sudhar Samiti Society. However, the accused persons through their associates wrongfully got a part of land in question transferred in their names in connivance with the then President of Society and thereby, grabbed the land of the complainant society. The complainant also submitted that some civil suits were also filed against the respondents/accused persons which were later on withdrawn and some other litigations are pending.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">3. The main crux of the matter is that the accused persons by making false and fabricated documents had grabbed the land of Harizan Gram Sabha which had been specially alloted for SC members, therefore, the accused persons have committed an offence under Section 3 (1) (f) and (g) of SC/ST Act through forged and fabricated documents.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">4. In the present complaint case, the complainant has examined only one witness in pre-summoning evidence and this witness is the AR of the complainant namely Sh. Jaipal Singh who has proved the resolution in his favour along with caste certificate and registration certificate of the society to represent Shakur Pur Jatav Samaj Kalayan Samiti.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The complainant has also brought on record the Khatauni for the year 2009-2010 issued on 07.02.2013 received through RTI application which shows that the land in question belongs to Harizan Sudhar Samiti, Shakurpur Village, Delhi.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">5. I have heard Ld. Counsel for the complainant who has also placed reliance on the judgment of Hon'ble Supreme Court in Jagpal Singh & Ors. v. State of Punjab passed in Civil Appeal No. 1132/2011 dated 28.01.2011 as per which any land which is vested to Gram Sabha and is non-transferable, cannot be allowed to be un-authorizedly occupied by any means. Even if, there is long duration of such illegal occupation or huge expenditure in making constructions, it must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">6. The complainant has not produced any document on record to show through which document the accused persons had entered into the land in question, however, he has filed the copy of order of civil suit as Mark A. Along with that, complainant has also filed the copy of written statement of accused No.1, 3 and 4. As per written statement, this land was initially alloted to Harizan Gram Sabha in the year 1954 and was in possession and control of Harizan Sudhar Samiti Society who issued an SPA in favour of Sh. Kanhaiya Lal, President of the society on 25.01.1975 and thereafter, on the basis of said SPA, Sh. Kanhaiya Lal sold the said land to Sh. Raj Singh Malik and Sh. Ram Kumar Malik on 07.02.1975 vide registered documents. The accused No. 1, 3 and 4 purchased this property from Sh. Raj Singh and Sh. Ram Kumar Malik vide notorized documents on 05.04.1980 and since then they are in possession of that property.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The testimony of CW-1 Sh. Jaipal Singh in pre-</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">summoning evidence only shows that the land in question was initially alloted to Gram Sabha and it is alleged that the accused persons had illegally encroached upon the land in question and thereby they had committed an offence under Section 3 (I) (f) and (g) of SC/ST Act. However, this land was sold by Samiti itself not directly to the accused persons but to one Sh. Raj Singh Malik and Sh. Ram Kumar (as gathered from the written statement filed on record in the suit filed by the complainant/petitioner) and the accused persons came into possession of this property in the year 1980 through notorized documents executed in their favour by Sh. Raj Singh and Sh. Ram Kumar Malik.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">7. The allegations against accused persons are of conspiracy with the President of Harizan Sudhar Samiti Society to grab the land in question. However, it is beyond any stretch of imagination to assume or accept that the alleged accused persons who came into land in 1980 could have conspired with the President to grab the land in 1975 when he sold the property to Sh. Raj Singh and Sh. Ram Kumar Malik. The accused persons are not the first one who had taken land from Sh. Kanhaiya Lal. This land was initially sold to Raj Singh Malik and Ram Kumar and it is not alleged that they were part of any conspiracy. If Raj Singh and Ram Kumar had not done any illegal act, as they are not made an accused in this case, the purchase of property by the respondents/accused persons from Raj Singh and Ram Kumar cannot be termed illegal to attract the offence under Section 3 (i), (f) and (g) of SC/ST Act.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><b>It is true that as per the judgment of Hon'ble Supreme Court in Jagpal Singh Vs. State of Punjab, every claim/occupation over Gram Sabha land by any person through any means is illegal and they need to vest back to Gram Sabha and authorities must act in that respect, however, if all such transfers are held to be an offence under Section 3(i) (f) and (g) of SC/ST Act, thousands of purchasers who have purchased land in such manner will have to be prosecuted. The Act was passed not to be used as a tool to attack the transactions between innocent buyers and sellers but to defend the right of the people belonging to SC/ST community.</b></div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Therefore, I do not find any material in the complaint or in the testimony of CW-1 sufficient enough to summon the accused persons. As there is no sufficient ground to proceed, the present complaint, in view of Section 203 Cr.P.C, is dismissed.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">File be consigned to record room.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Copy of the order be given dasti.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(Vikram) </div><div style="text-align: justify;">Announced in Open Court </div><div style="text-align: justify;">ASJ02cumSpecial Judge (NDPS), on 13th Day of October, 2022 </div><div style="text-align: justify;">NorthWest District, Rohini Courts, Delhi.</div></div></div>Claim for Commonshttp://www.blogger.com/profile/06082132405339033351noreply@blogger.com0tag:blogger.com,1999:blog-5162401328122846212.post-28873579546365930582022-10-06T16:43:00.004+05:302022-10-07T17:49:44.574+05:30Bombay HC: Ensure no further encroachments or regularisations on grazing lands [06.10.2022]<div style="text-align: center;">IN THE HIGH COURT OF JUDICATURE AT BOMBAY</div><div style="text-align: center;">CIVIL APPELLATE JURISDICTION</div><div style="text-align: center;"><br /></div><div style="text-align: center;">SUO MOTU PUBLIC INTEREST LITIGATION <span style="text-align: justify;">NO. 2 OF 2022</span></div><div style="text-align: justify;"><br /></div><div style="text-align: center;">High Court on its Own Motion <span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span>} Petitioner</div><div style="text-align: center;">versus</div><div style="text-align: center;">The State of Maharashtra and Ors. <span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span>} Respondents</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Mr. Ashutosh M. Kulkarni, Amicus Curiae.</div><div style="text-align: justify;">Mr. P. P. Kakade, Government Pleader with Mr. M. M. Pabale, AGP for State.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">CORAM: DIPANKAR DATTA, CJ.</div><div style="text-align: justify;"><span> </span><span> </span><span> </span><span> </span>MADHAV J. JAMDAR, J.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">DATE: OCTOBER 6, 2022</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">P.C.:</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">1. In deference to our order dated 15th September 2022, Mr. R. S. Chavan, Joint Secretary, Revenue and Forest Department, Government of Maharashtra has filed an affidavit.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">2. Under paragraph 6 of such affidavit are 3 (three) tables. The first table refers to the number of encroachments on Gairan/Government lands that have been removed between 12th July 2011 and 15th September 2022. The number is 24,513. The second table refers to the extent of regularization of encroached area till 12th July 2011. The number indicated is 12,652. However, the most alarming feature is found in the third table, which suggests that there are 2,22,153 illegal constructions on Gairan lands and the approximate encroached area measures 10,089 hectares.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">3. Mr. Kulkarni, learned Amicus Curiae is right in pointing out that neither the basis for regularization of 12,652 encroachments till 12th July 2011 has been indicated in the affidavit nor has the deponent indicated with any degree of clarity what step/measure is in the contemplation of the Government of Maharashtra to remove the high number of encroachments, i.e., 2,22,153, and make 10,089 hectares land free from encroachments.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">4. Having perused the affidavit of the Joint Secretary and bearing in mind the submissions advanced by Mr. Kulkarni, learned Amicus Curiae and Mr. Kakade, learned Government Pleader appearing for the respondents, we are of the considered opinion that there has only been a partial compliance of the directions issued by the Supreme Court in its decision in Jagpal Singh and Ors. vs. State of Punjab and Ors., reported in (2011) 11 SCC 396. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">5. In view of the aforesaid satisfaction reached by us, we make the following order: -</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(i) There shall be no further regularization of any encroachment by any authority/officer of the Government until further orders of this Court, except in the manner directed by the Supreme Court in Jagpal Singh (supra). </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(ii) The Government of Maharashtra shall file a further affidavit indicating therein the basis for regularization of 12,652 encroachments till 12th July 2011 within 4 (four) weeks from date. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(iii) In such affidavit, the Government of Maharashtra shall refer to the policy taken by it for removal of 2,22,153 encroachments on Gairan together with the road-map which it proposes to draw so as to facilitate removal of all encroachments by the end of this year. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(iv) The Government of Maharashtra shall ensure that no further encroachments on Gairan lands take place, failing which this Court may be constrained to take appropriate steps against the persons responsible for checking that such encroachments do not take place. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(v) It would desirable if a notice is issued by the Government of Maharashtra informing all its officers posted in the appropriate departments to keep a check on further encroachments on Gairan lands. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">6. List the PIL petition on 17th November 2022 for reporting compliance of this order</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(MADHAV J. JAMDAR, J.) <span> </span><span> <span> </span><span> </span><span> </span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span>(CHIEF JUSTICE)</div><div style="text-align: justify;"><br /></div>Claim for Commonshttp://www.blogger.com/profile/06082132405339033351noreply@blogger.com0tag:blogger.com,1999:blog-5162401328122846212.post-47704197448056557612022-10-06T16:12:00.002+05:302022-10-06T16:12:49.954+05:30Bombay HC: Remove encroachment from gairan land [21.09.2022]<div style="text-align: center;">IN THE HIGH COURT OF JUDICATURE AT BOMBAY </div><div style="text-align: center;">NAGPUR BENCH, NAGPUR. </div><div style="text-align: center;"><br /></div><div style="text-align: center;">CIVIL WRIT PETITION NO. 4498 OF 2022 </div><div><br /></div><div><br /></div><div style="text-align: center;">Anandrao Mahadeo Wankhede and ors. </div><div style="text-align: center;"> -Vs- </div><div style="text-align: center;"> The State of Maharashtra and ors.</div><div><br /></div><div>Mr.R.H.Kamble, counsel for the petitioners. </div><div>Mr.K.L.Dharmadhikari, A.G.P for respondent Nos.1 to 3. </div><div><br /></div><div>CORAM : SUNIL B.SHUKRE &
G.A.SANAP, JJ.
<br /> DATE : 21.09.2022. </div><div><br /></div><div><div style="text-align: justify;">1. Heard.</div><p id="p_1" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">2. The petitioners are occupying e-class gairan land by making an encroachment upon it. It appears that the petitioners have made some construction on a portion of land and on the remaining part of the land, the petitioners have been making cultivation. According to the learned counsel for the petitioners, the petitioners are entitled for retention of land and also it's regularization as their case would be covered by section 2 of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013, (for short the Act, 2013). They submit that there is a provision made in Section 22A of Maharashtra Land Revenue Code, 1966 (for Short the "MLR Code") for diversion of any land for public purpose and the public purpose would only mean any of the purposes mentioned in section 2 of the Act of 2013. Learned counsel for the petitioners further submit that tree plantation is not a public purpose, while allotment of land to the petitioners, being in the nature of rehabilitation is a public purpose and, therefore, the gairan land can be diverted for that purpose under Section 22A of the MLR Code. He also submits that till it is done, the possession of the petitioners in respect of the gairan land, which is peaceful would have to be protected by this Court.</p><p id="p_2" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">3. While, it is true that under Section 22A(2) of the MLR Code gairan land can be diverted for any public purpose or public project, the analogy being made by the learned counsel for the petitioners between the public purpose contemplated under the MLR Code and the public purpose contemplated under the Act of 2013, is skewed. The Act of 2013 regulates acquisition of private lands for public purpose and compensation to be paid for such acquisition, while Section 22A of the MLR Code does not deal with the acquisition of private lands, but deals with diversion of the public lands like the gairan land for public purpose. It does not contemplate granting of any compensation to anyone, even to an encroacher, for such diversion. Therefore, the provisions made in Section 2 of the Act of 2013 cannot be taken recourse to, to raise an objection that the gairan land cannot be diverted for the purpose of tree plantation on the ground that tree plantation is not a public purpose. In fact, we must say it here that it defies logic to say that plantation of trees on any public land, which achieves greater public interest and public welfare, is not a public purpose and therefore, the tree plantation must not be allowed and the possession of encroachers like the petitioners be protected.</p><p id="p_3" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"><b>4. There is a law settled long back by the Supreme Court in the Case of Jagpal Singh and ors .Vs. State of Punjab and ors. reported in 2011(11) SCC 396, wherein the Supreme Court has held that the lands like gairan lands are public utility lands of the villages and are used for the common benefit of the villagers of the village such as ponds, storage of harvested grain, grazing ground for the cattle, threshing floor, maidan for playing by children, carnivals, circuses, public festivals, recreational purposes, cart stands, water bodies, passages, cremation ground or graveyards, and so on and so forth.</b></p><p id="p_4" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"><b>5. It has further held that these lands were generally treated as inalienable in order that their status as community land was preserved. The Apex Court has also noted that after the independence, unfortunately, such gairan lands became object of illegal use by some unscrupulous persons using muscle power, money power or political clout and the result was that large chunks of these lands were converted into private use. It was because of such illegal activities being carried out on these gairan lands, that the Apex Court gave directions to all the State Governments in the country that they shall prepare schemes for eviction of illegal/unauthorised occupants of these lands and their regularisation be not permitted save in exceptional cases as for e.g, where lease is already granted under some Government notification to a landless labourer or any member of the Scheduled Castes/Scheduled Tribes but this was only to be done in exceptional cases or where there is already a school, dispensary or other public utility on the land.</b></p><p id="p_5" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">6. The petitioners are private persons, who are by making encroachments on the gairan land, are illegally cultivating the gairan land. Admittedly, they have not been granted any lease, under any Government notification. The petitioners also do not fall under any other eligible categories or persons for seeking regularisation of their illegal possession of the gairan land. As such, none of the petitioners is entitled to any relief as claimed in this petition. This is not a fit case for making any intervention. The petition stands summarily dismissed.</p><div style="text-align: justify;"><span><br /></span></div><div style="text-align: justify;"><span><span> </span> </span><span> </span><span> </span><span> </span><span> </span>(G.A.SANAP,J) <span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span> (SUNIL B. SHUKRE,J) </div></div>Claim for Commonshttp://www.blogger.com/profile/06082132405339033351noreply@blogger.com0tag:blogger.com,1999:blog-5162401328122846212.post-91501768785528594332022-10-06T16:00:00.001+05:302022-10-06T16:08:06.647+05:30Supreme Court grants 'breathing time' to remove encroachment by hospital from water body [26.09.2022]<div>ITEM NO.27 </div><div>COURT NO.9 </div><div>SECTION XII </div><div style="text-align: center;">SUPREME COURT OF INDIA</div><div style="text-align: center;">RECORD OF PROCEEDINGS </div><div><br /></div><div style="text-align: center;">Petition(s) for Special Leave to Appeal (C) No(s). 16298/2022 </div><div style="text-align: center;">(Arising out of impugned final judgment and order dated 06-09-2022
in WP No. 23977/2022 </div><div style="text-align: center;">passed by the High Court Of Judicature At
Madras) </div><div><br /></div><div style="text-align: center;">KOPPERUNDEVI <span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span>Petitioner(s) </div><div style="text-align: center;">VERSUS </div><div style="text-align: center;"><br /></div><div style="text-align: center;">THE DISTRICT COLLECTOR & ORS. <span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span>Respondent(s) </div><div><br /></div><div>(FOR ADMISSION and I.R. and IA No.136614/2022-EXEMPTION FROM FILING
C/C OF THE IMPUGNED JUDGMENT ) </div><div><br /></div><div>Date : 26-09-2022 </div><div><br /></div><div>This petition was called on for hearing today. </div><div><br /></div><div>CORAM :
HON'BLE MR. JUSTICE DINESH MAHESHWARI </div><div>HON'BLE MS. JUSTICE BELA M. TRIVEDI </div><div><br /></div><div>For Petitioner(s) Dr. Nanda Kishore, AOR </div><div>For Respondent(s) </div><div><br /></div><div>UPON hearing the counsel the Court made the following </div><div><br /></div><div><div style="text-align: center;">O R D E R</div><p id="p_1" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">The High Court of Judicature at Madras had expected in its order dated 30.11.2017 in W.P. No. 31168 of 2017, that the respondents shall take appropriate action for removal of encroachments in the watercourse, which included the land comprising Survey No. 134 at Virudhachalam Town. There had also been a contempt petition filed in the High Court bearing No. 1635 of 2022, alleging non-compliance of the order so passed by the High Court.</p><p id="p_2" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">The authorities concerned having, thus, been jolted into action, the building in question, said to be housing a multi-speciality hospital, also came to be marked for removal, for being an encroachment over the land of watercourse/water body. As against this action, the petitioner attempted to invoke writ jurisdiction of the High Court while suggesting entitlement over the building in question, with reference to a property tax receipt of the year 2021-22. However, the petitioner essentially made the submissions before the High Court that she was ready to move to the alternative arrangement but required some breathing time for the same.</p><p id="p_3" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">In the impugned order dated 06.09.2022, the High Court referred to the requirements of removal of encroachments with reference to the various decisions of this Court including that in Jagpal Singh v. State of Punjab: (2011) 11 SCC 396; and found no reason to grant any indulgence. Hence, the petitioner seeks special leave to appeal.</p><p id="p_4" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">While seeking some relaxation/leniency, the petitioner has essentially stated as under: -</p><p id="p_5" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"></p><blockquote id="blockquote_1" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">“The petitioner herein beg before this Hon’ble Court some time to vacate the Hospital run by the Petitioner in the name and style of “Deivam hospital” at Ulundurpet Road, Vridhachalam. The said hospital in running with 15 beds, upto 15 visiting doctors, 10 para medics such Nurses, lab technicians, ANMS and 15 non technical staff such as helpers, cashier, accountant, receptionist etc. Further, it is respectfully submitted that at present 15 in-patients taking treatment in the hospital and regularly 50 to 100 patients visit the hospital as out-patients. Further, the hospital has operation theater, ICU and lab facilities available and also wards such as common words, Special rooms and delivery wards etc. are available with the hospital.” Learned senior counsel for the petitioner has also made a fervent plea for granting some time to vacate, particularly in view of the services being rendered in the hospital in question.</blockquote><p id="p_6" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"></p><p id="p_7" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">While rendering the health care services could be a laudable objective, establishment of a hospital for that purpose in the land of watercourse or water body cannot be countenanced. The reference to in-patients and other visiting patients is also seriously questionable, where a sympathy is sought to be gained with reference to their requirements.</p><p id="p_8" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">We have no doubt that if the genuine case of a needy patient is before the revenue authorities, which include the District Collector, Cuddalore, they would take appropriate steps for ensuring alternative health care facilities to the patient concerned.</p><p id="p_9" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">Though no relaxation as such appears available to the petitioner but, only for the purpose of extending some breathing time to the petitioner for removal of the moveables and making alternative arrangements, we are inclined to grant some time to the petitioner even without issuing notice to the respondents but, only until 10.10.2022.</p><p id="p_10" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">Such a relaxation would be available to the petitioner only if she submits a specific undertaking to this Court supported by her affidavit within three days from today, that the building in question shall be vacated on or before 10.10.2022 and no hindrance would be caused in its removal after 10.10.2022; and further that she would not claim any compensation in regard to the removal of the encroachment as also shifting of movables. While removing the encroachment in question, the authorities shall, obviously, be expected to take appropriate care of the bona fide need of patients and provide them alternative medical support, if so required.</p><p id="p_11" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">Having regard to the circumstances of the case, we are not disposing of this petition but would keep the same pending, while awaiting compliance from the petitioner as also from the respondents.</p><p id="p_12" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">To avoid any ambiguity, we make it clear that another attempt to obstruct removal of encroachment was not countenanced by this Court, when we dismissed SLP(Civil) No. 15945 of 2022 on 19.09.2022, which was filed by Indra Nagar Residents Welfare Association while leaving it open for that petitioner to make appropriate request before the High Court as regards the prayer for alternative reliefs to its members, including that of rehabilitation. So far the present matter is concerned, a little breathing time is being provided to the petitioner subject to the undertaking as aforesaid only because of the reference to the likely difficulties of the patients, particularly indoor patients, who may require alternative arrangements. However, this order, in no way, absolve the authorities concerned from carrying out earnestly the task of removal of encroachments, as expected under the orders of the High Court.</p><p id="p_13" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">List this matter on 17.10.2022.</p><p id="p_14" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"> A copy of this order be forwarded to the District Collector, Cuddalore, for appropriate compliance and then, for submission of compliance report.</p></div>Claim for Commonshttp://www.blogger.com/profile/06082132405339033351noreply@blogger.com0tag:blogger.com,1999:blog-5162401328122846212.post-37562266090241549922022-09-23T11:30:00.002+05:302022-09-23T11:30:43.542+05:30Madras HC: Bounden-duty of the Revenue officials to preserve & protect government lands; Court should not permit continued illegal occupation [02.09.2022]<div style="text-align: center;">IN THE HIGH COURT OF JUDICATURE AT MADRAS </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">DATED: 02.09.2022 </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE </div><div style="text-align: justify;">AND
THE HON'BLE MRS.JUSTICE N.MALA </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">W.P.No.23104 of 2022 </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Indra Nagar Residents' Welfare Association </div><div style="text-align: justify;">Rep. by its Vice President R.Vijayakumar </div><div style="text-align: justify;">No.13, Indra Nagar, Cuddalore Road </div><div style="text-align: justify;">Vrithachalam Taluk
Cuddalore District. <span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> <span> </span></span>... Petitioner </div><div style="text-align: justify;"><br /></div><div style="text-align: center;">Vs. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">1. The District Collector
Vridhachalam Taluk
Cuddalore District 607 001. </div><div style="text-align: justify;">2. The Revenue Divisional Officer
Vridhachalam Taluk
Cuddalore District. </div><div style="text-align: justify;">3. The Tahsildar
Vridhachalam Taluk Office
Vridhachalam Taluk
Cuddalore District. </div><div style="text-align: justify;">4. The Commissioner
Municipality Office
Vridhachalam Taluk
Cuddalore District. <span> </span><span> </span><span> </span>...Respondents </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Prayer: Petition filed under Article 226 of the Constitution of India
praying for a writ of Certiorarified Mandamus calling for the records
relating to the impugned order of the fourth respondent, namely the
Commissioner, Municipality Office, Vridhachalam, Cuddalore District, in
his proceedings bearing No.Na.Ka.No.4606/2018/F1 dated
22.07.2022, quash the same and consequently, to direct the
respondents herein to allot any alternative site or adjacent to the
comprising S.No.204 situated at Indra Nagar, Vridhachalam. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">For the Petitioner : Mr.D.Daniel
For Mr.T.Nithya </div><div style="text-align: justify;">For the Respondents : Mr.J.Ravindran
Additional Advocate General </div><div style="text-align: justify;">Assisted by
Mr.A.Selvendran
Special Government Pleader </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">ORDER</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(Order of the Court was made by the Hon'ble Chief Justice) The writ petition has been filed challenging the notice dated 22.07.2022 mainly on the ground that the land occupied by the members of the petitioner Association is not waterbody, but sarkar poramboke and therefore, the respondents have erroneously issued the notice stating that the land is a waterbody.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">2. Learned counsel for the petitioner Association submits that the members of the petitioner Association are residing in the land in question for the past 70 years and therefore, notice should not have been effected on them and hence, a prayer is made to set aside the impugned notice.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">3. Learned counsel sought time on the previous occasion to furnish an undertaking to remove the encroachment within a month and therefore, the matter was adjourned for today. But, instead of giving an undertaking, learned counsel for the petitioner has placed on record certain documents to prove the right of the members of the petitioner Association to possess the land. However, he could not refer to any title document to prove lawful occupation of the land, by either producing patta or assignment or any other document which may show right in favour of the members of the petitioner Association to possess the land.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">4. The documents produced are revenue receipts and other documents which cannot form basis to even claim title over the land. He even failed to refer any document to show that S.No.204, for which notice has been given, is not a land of waterbody, but sarkar poramboke. The said document has now been furnished, but is not a revenue document.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">5. In view of the above, the members of the petitioner Association have failed to show their title to the land in question so as to possess it, even if it is a sarkar poramboke, i.e. Government land. We do not find any document to show that S.No.204 is Sarkar poramboke. That apart, the respondents are taking action pursuant to the order of this Court in W.P.No.31168 of 2017 decided by order dated 30.11.2017. The petitioner Association did not file any application to seek recall of the order or to review the order. Even they failed to prove their right over the land, when we provided an opportunity for the same.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">6. At this juncture, it would be appropriate to refer to the decision of the Apex Court in the case of Joginder v. State of Haryana, (2021) 3 SCC 300, wherein it has been emphatically held as under:</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">"13. It is required to be noted that the persons in illegal occupation of the Government Land/Panchayat Land cannot, as a matter of right, claim regularization. Regularization of the illegal occupation of the Government Land/Panchayat Land can only be as per the policy of the State Government and the conditions stipulated in the Rules. If it is found that the conditions stipulated for regularisation have not been fulfilled, such persons in illegal occupation of the Government Land/Panchayat Land are not entitled to regularization. .....</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">14. At this stage, the decision of this Court in the case of Jagpal Singh v. State of Punjab, (2011) 11 SCC 396, is required to be referred to. In the said decision, this Court had come down heavily upon such trespassers who have illegally encroached upon on the Gram Sabha/Gram Panchayat Land by using muscle powers/money powers and in collusion with the officials and even with the Gram Panchayat. In the said decision, this Court has observed that "such kind of blatant illegalities must not be condoned". It is further observed that "even if there is a construction the same is required to be removed and the possession of the land must be handed back to the Gram Panchayat". It is further observed that "regularizing such illegalities must not be permitted because it is Gram Sabha land which must be kept for the common use of the villagers of the village". Thereafter, this Court has issued the following directions:</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">'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.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">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.' In view of the above also, the prayer of the Petitioners for regularization of their illegal occupation of the panchayat land cannot be accepted."</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">[emphasis supplied]</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">7. The decision in Joginder v. State of Haryana, supra, reiterated the view enunciated in Jagpal Singh v. State of Punjab, (2011) 11 SCC 396. In terms of the directions contained in the case of Jagpal Singh v. State of Punjab, supra, it is the bounden duty of the State Government concerned to ensure restoration of such lands for the common use of villagers of the village concerned. The State Government is obligated to make earnest efforts to restore every piece of illegally occupied land which would fall within the orders and directions issued in the case of Jagpal Singh v. State of Punjab, supra.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">8. The mushroom growth of encroachment in the waterbody is affecting the environment. It is the bounden-duty of the officials of the Revenue Department to preserve and protect government lands which have been reserved for specific purposes. It is trite that when a person is a rank encroacher without any valid right or title over the land belonging to the government, the court should not permit or protect the continued illegal occupation of the land. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">9. In the light of the aforesaid and in view of the fact that the order passed by this Court in the year 2017 is yet to be complied and finding no title or right of the members of the petitioner Association in the land in question, we do not find any reason to cause interference with the impugned notice. Accordingly, the writ petition is dismissed. There will be no order as to costs. Consequently, WMP Nos.24349 and 24350 of 2021 also dismissed.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(M.N.B., CJ.) (N.M., J.) </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"> 02.09.2022</div>Claim for Commonshttp://www.blogger.com/profile/06082132405339033351noreply@blogger.com0tag:blogger.com,1999:blog-5162401328122846212.post-9054548102029910372022-09-17T12:12:00.004+05:302022-09-17T12:12:48.068+05:30Andhra HC: Duty of Panchayat Secretary to implement Panchayat resolutions. [14.09.2022]<div style="text-align: center;">THE HON'BLE SRI JUSTICE VENKATESWARULU NIMMAGADDA </div><div style="text-align: center;">WRIT PETITION NO.30935 OF 2021 </div><div style="text-align: center;"><br /></div><div><div style="text-align: center;"><span style="font-family: "Times New Roman", Times, serif; font-size: 1.1em; text-align: justify;">Veligandla Gra</span>m Panchayat</div><div style="text-align: center;">versus</div><div style="text-align: center;">The State Of Andhra Pradesh</div></div><div><br /></div><div>14.09.2022</div><div><br /></div><div>ORDER:<p id="p_1" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">This writ petition is filed under Article 226 of the Constitution of India, claiming the following relief:</p><blockquote id="blockquote_1" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">"To issue writ of mandamus declaring:</blockquote><blockquote id="blockquote_2" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">(a) That the respondents 2 to 9 failed in their statutory duty to protect the petitioner's land in an area of about Ac.0-50 cts in Sy.No.344 of Veligandla Gram Panchayat (V&M), Prakasam District from encroachments;</blockquote><blockquote id="blockquote_3" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">(b) That the respondents 8 & 9 are acting prejudicial to the interest of the petitioner Gram Panchayat and in contravention of the petitioner's decisions viz; Gram Panchayat's Resolution No.6 dated 29.11.2021 and 02.08.2021 as illegal, arbitrary, violative of principles of natural justice, violative of Article 14 of the Constitution and ultravires to the provisions of A.P. Panchayat Raj Act,</blockquote><blockquote id="blockquote_4" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">(c) Consequently to direct Respondent Nos. 2 to 4 to initiate disciplinary action against respondents 8 & 9 for creating and fabricating false documents supporting the clandestine claims of respondents 10 to 13 in respect of petitioner's land in Sy.No.344."</blockquote><p id="p_2" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"></p><p id="p_3" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">Learned counsel for the petitioner submits that, the petitioner is a Gram Panchayat, represented by its elected ward members and duly elected Sarpanch. As per the revenue record, land admeasuring Ac.4-52 cents in Sy.No.344 of Veligandla Gram Panchayat is classified as 'Gramakantam' and it is situated in the prime locality of the village. Most of the land is filled with permanent structures like dwelling houses. Further, land admeasuring Ac.0-50 cents in Sy.No.344 is vacant and it has been used for community purposes. Out of that, an extent of Ac.0-15 cents is used as stock point for construction material (previously used for storing farm harvest). The said land and remaining portion has been in utilization for parking of vehicles, carts and also as RTC bus stop in the village. Since the vacant land admeasuring Ac.0-50 cents in Sy.No.344 is vested with the Gram Panchayat, it is the absolute title holder and vested control over the said land. Accordingly, the petitioner - Gram Panchayat passed Resolution on 02.08.2021 proposing to construct BC,SC Hostel and Library. It is submitted that, contrary to the resolution dated 02.08.2021, Respondent Nos. 8 & 9 herein acted against the interests of the Gram Panchayat and fabricated the documents to support the clandestine claims of Respondent Nos. 10 to 13 who are busy bodies and not even the residents of the village. Learned counsel further submits that, since the land is gramakantam land, it is vested with the Gram Panchayat and Respondent No.8 has no authority or power to issue any certificates, more particularly possession certificates in favour of the unofficial respondents, which is illegal and out of jurisdiction of Respondent No.8 and in support of his contentions, learned counsel placed reliance on the judgments of the Hon'ble Apex Court in Jagpal Singh and others vs. State of Punjab and Janabai vs. Additional Commissioner and others. Deprived of the said violations, the petitioner submitted a representations dated 30.11.2021 and 04.12.2021 to Respondent Nos. 2 to 7. But, even after receipt of the said representations, the concerned authorities have not acted upon so far. Hence, having no other option, the petitioner preferred the present writ petition.</p><p id="p_4" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">Whereas, Secretary, Veligandla Gram Panchayat filed counter affidavit on behalf of Respondent Nos. 7 & 9, denying material allegations, specifically stating that the claim of the petitioner i.e. land admeasuring Ac.0-50 cents in Sy.No.344 is vacant is false and baseless. It is submitted that, said land is classified as 'Gramakantam' and as per the field verification on ground, it is physically in possession of the official respondents as well as the public offices which are catering the needs of the villagers. Physical possession of the land is categorized as follows:</p><pre id="pre_2" style="font-size: 1em; line-height: 1.5em; overflow-wrap: break-word; padding: 20px; text-align: justify; white-space: pre-wrap; width: 700px;"> 1 Old Grama Chavidi Ac.0-04 cents
4 Agricultural godown Ac.0-03 cents
6 Peerla Chavidi Ac.0.15 cents
7 Bulk milk centre Ac.0.05 cents
8 Vacant site Ac.0.05 cents
9 Remaining land used for Ac.0.97 cents
roads
</pre><p id="p_5" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">It is further submitted that, without verifying the actual physical features of the land, the petitioner along with other members passed resolution that land admeasuring Ac.0-05 cents in Sy.No.344 is vacant and it can be utilized for construction of BC & ST Welfare Hostel, Bus Shelter, Public Library in the village, which is far away from the truth and physical verification of the land. Therefore, it is the statutory duty of the respondents, more particularly Respondent No.8 to protect the vacant land of the Gram Panchayat to make use of the same for community purpose/public purpose of the villagers.</p><p id="p_6" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">The unofficial respondents i.e. Respondent Nos. 10, 11 & 13 filed counter affidavit along with vacate stay petition, wherein, they pleaded that they were issued possession certificates in respect of the land admeasuring Ac.0-02 cents each in Sy.No.344, which they are in possession since 30 years. After issuance of the said possession certificates by Respondent No.8, the unofficial respondents got constructed residential houses as per the housing scheme formulated by the Government. Since then they have been in possession and enjoyment of the respective house properties. If the petitioner as well as official respondents are intending to evict them, they must follow due process of law under the provisions of Andhra Pradesh Panchayat Raj Act, 1994 (for short 'the Act') and also observe principles of natural justice. It is contended that, the present writ petition is filed by the newly elected sarpanch of the Gram Panchayat out of political vengeance only. Reliance is placed on judgment of this Court in Bayya Mahadeva Sastry and others v. State of Andhra Pradesh3 and sought for dismissal of the writ petition.</p><p id="p_7" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"></p><p id="p_8" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">A bare perusal of the documents filed by the petitioner as well as respondents and also considering the contentions of the learned counsel for the petitioner and learned Standing Counsel for Gram Panchayat, this Court is of the view that, the writ petition filed, on the face of it, is misconceived, for the reason that, the petitioner itself is a competent authority to enforce the statutory duties, power and functions cast upon it, as well as, it is empowered to implement the resolution(s) in accordance with law. The fact remains that, Section 98 of the Act, empowers the Executive Authority to remove or alter any projection, encroachment or obstruction, in or over any public road vested in such Gram Panchayat, by issuing notice. Similarly, according to Section 55 of the Act, communal property administered for the benefit of the villagers shall vests in the Gram Panchayat.</p><p id="p_9" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"></p><p id="p_10" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">Section 2(12) of the Act defined 'executive authority' means the Panchayat Secretary appointed to each Gram Panchayat. The functions of the 'Executive Authority' are enumerated in Sections 31 and 32 of the Act as follows:</p><p id="p_12" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">31. Functions of Executive Authority. -</p><p id="p_13" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">(1) The Panchayat Secretary, with the approval of, or on the direction of the Sarpanch, convene the meetings of the Gram Panchayat so that at least one meeting of the Gram Panchayat is held every month and if he fails to discharge that duty, with the result that no meeting of the Gram Panchayat is held within a period of ninety days from the last meeting he shall be liable to disciplinary action under the relevant rules:</p><p id="p_14" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">Provided that where the Sarpanch fails to give his approval for convening the meeting so as to hold a meeting within the period of ninety days aforesaid, the Panchayat Secretary shall himself convene the meeting in the manner prescribed.</p><p id="p_15" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">(2) The Executive Authority shall ordinarily attend to the meetings of the Gram Panchayat or of any committee thereof and shall be entitled to take part in the discussions thereat, but he shall not be entitled to vote or to move any resolution.</p><p id="p_16" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">32. Functions of the Executive Authority. - The Executive Authority shall -</p><p id="p_17" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">(a) be responsible for implementing the resolutions of the Gram Panchayat and of the Committee thereof: Provided that where the Executive Authority considers that a resolution has not been legally passed or is in excess of the powers conferred by this Act or that if carried out, it is likely to endanger human life or health or the public safety, the Executive Authority shall:</p><p id="p_18" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">(i) where he is the Sarpanch directly;</p><p id="p_19" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">(ii) where he is not the Sarpanch, through the Sarpanch, refer the matter to the Commissioner for orders, and his decision shall be final;</p><p id="p_20" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">(b) control all the officers and servants of the Gram Panchayat;</p><p id="p_21" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">(c) exercise all the powers and perform all the functions specifically conferred or imposed on the Executive Authority by or under this Act and subject to all restrictions and conditions imposed by or under this Act, exercise the executive power for the purpose of carrying out the provisions of this Act and be directly responsible for the due fulfilment of the purpose thereof.</p><p id="p_22" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">In view of Sections 31 & 32 of the Act, it is the duty of Respondent No.9 - Secretary, Veligandla Gram Panchayat to implement the resolutions of the Gram Panchayat. If, the resolutions of the Gram Panchayat is against the public interest or health hazardous, the same shall be brought to the notice of the Commissioner for appropriate action.</p><p id="p_23" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"><b>In Jagpal Singh & Others v. State of Punjab & Others (referred supra), at paragraph No.4, the Apex Court held as follows:</b></p><blockquote id="blockquote_6" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"><b>"The protection of common 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 v. Paladuge Anjayya4, this Court observed :</b></blockquote><blockquote id="blockquote_7" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"><b>"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) of the Estates Abolition Act."</b></blockquote><p id="p_24" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"></p><p id="p_25" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">In view of the principle laid down by the Supreme Court in the judgment referred above, particular piece of land is earmarked for public or communal purpose, it shall not be alienated even after change of classification of the land. The Apex Court concluded that when once the land was reserved for common purpose and earmarked that land, cannot be assigned, depriving the villagers at large by whatever method or mode by any authorities, more particularly by Respondent No.8, who is not the competent authority to deal with the property.</p><p id="p_26" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">In Janabai vs. Additional Commissioner and others (referred supra), the Hon'ble Apex Court held as follows:</p><blockquote id="blockquote_8" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">"Section 53 that occurs in Chapter III deals with obstruction and encroachment upon public streets and upon sites. It confers power on the Panchayat to remove such obstruction or encroachment or to remove any unauthorizedly cultivated grazing land or any other land. That apart, it also empowers the Panchayat to remove any unauthorized obstruction or encroachment of the like nature in or upon a site not being private property. The distinction has been made between private property and public property. It has also protected the property that vests with the Panchayat. If the Panchayat does not carry out its responsibility of removing the obstruction or encroachment after it has been brought to its notice in accordance with the procedure prescribed therein, the higher authorities, namely, the Collector and the Commissioner, have been conferred with the power to cause removal. There is a provision for imposition of fine for commission of offence."</blockquote><p id="p_27" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"></p><p id="p_28" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">In the case on hand, it appears that there are disputes between the Elected Body and Executive Authority - Gram Panchayat. As long as the resolution passed by the Gram Panchayat is not against the public at large and their interests, the Executive Authority i.e. Respondent No.9 has no other option, except to implement the same. Therefore, Respondent No.9 is directed to implement the Resolutions of the Gram Panchayat dated 29.11.2021 and 02.08.2021, as far as it can be implemented in respect of the vacant site by removing temporary encroachments, if any found after conducting detailed survey and inspection.</p><p id="p_29" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"></p><p id="p_30" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">In the result, writ petition is allowed, directing Respondent No.9 to implement the Resolutions of the Gram Panchayat dated 29.11.2021 and 02.08.2021, as far as it can be implemented by removing encroachments in respect of the subject land by removing temporary encroachments, if any found after conducting detailed survey and inspection. It is needless for this Court to say that, Respondent No.9 shall conduct survey and inspection with the help of Village Revenue Officer and Respondent No.8 and take appropriate action for removal of encroachments in pursuance of the Resolutions of the Gram Panchayat dated 29.11.2021 and 02.08.2021. No costs.</p><p id="p_31" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"></p><p id="p_32" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">Consequently, miscellaneous applications pending if any, shall stand closed.</p></div>Claim for Commonshttp://www.blogger.com/profile/06082132405339033351noreply@blogger.com0tag:blogger.com,1999:blog-5162401328122846212.post-67215304256907553612022-09-17T12:03:00.002+05:302022-09-17T12:03:22.070+05:30Bombay HC: Need to be informed on compliance of the Jagpal Singh directions [15.09.2022]<div style="text-align: center;">IN THE HIGH COURT OF JUDICATURE AT BOMBAY </div><div style="text-align: center;">CIVIL APPELLATE JURISDICTION </div><div style="text-align: center;"><br /></div><div style="text-align: center;">SUO MOTU PUBLIC INTEREST LITIGATION NO. 2 OF 2022 </div><div style="text-align: justify;"><br /></div><div style="text-align: center;">High Court on its Own Motion <span> </span><span> </span><span> </span><span> </span><span> </span><span> <span> </span><span> </span><span> </span></span><span> </span><span> <span> </span><span> </span><span> </span><span> </span><span> </span></span> Petitioner </div><div style="text-align: center;">versus</div><div style="text-align: center;">The State of Maharashtra and Ors.<span> </span><span> </span><span> <span> </span><span> </span><span> </span><span> </span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span> Respondents </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Mr. Ashutosh M. Kulkarni, Amicus Curiae. </div><div style="text-align: justify;">Mr. P. P. Kakade, Government Pleader with Mr. M. M.
Pable, AGP for State. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">CORAM: DIPANKAR DATTA, CJ. &
MADHAV J. JAMDAR, J.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">DATE: SEPTEMBER 15, 2022 </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">1. Mr. Kulkarni, learned amicus curiae has placed before us a decision of the Supreme Court in Jagpal Singh and Ors. vs. State of Punjab and Ors., reported in (2011) 11 SCC 396. Referring to paragraph 23 of the decision, Mr. Kulkarni submits that a report ought to be called for from the State Government in respect of compliance of the directions contained in such paragraph. Paragraph 23 of the decision reads as follows: -</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">"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/ unauthorised 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/UnionTerritories 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 regularising 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 Caste/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land."</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><b>2. We need to be informed by the State of Maharashtra as regards compliance of the aforesaid directions. The Principal Secretary, Revenue and Forest Department is directed to file an affidavit within 2 (two) weeks from date disclosing therein compliance of the same, if any. The Principal Secretary shall also include in the affidavit relevant data upon identification of illegal/unauthorized constructions on 'gairan' lands.</b></div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">3. List the PIL petition on 6th October 2022.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Date: 2022.09.16 </div>Claim for Commonshttp://www.blogger.com/profile/06082132405339033351noreply@blogger.com0tag:blogger.com,1999:blog-5162401328122846212.post-56423624696823498342022-09-10T14:09:00.002+05:302022-09-10T14:09:12.806+05:30Madras HC: Regularising will encourage encroachments of water bodies. Ultimate result would be drought and floods [30.08.2022]<div style="text-align: center;">IN THE HIGH COURT OF MADRAS</div><div style="text-align: center;"><br /></div><div style="text-align: center;">W.P. Nos. 22408, 22435, 22418, 22420, 22427, 22432, 22415 of 2022, </div><div style="text-align: center;">W.M.P. Nos. 21470, 21472, 21482, 21464, 21466, 21479 and 21475 of 2022</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Decided On: 30.08.2022</div><div style="text-align: center;"><br /></div><div style="text-align: center;">Kamalanathan and Ors. <span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span>Appellants</div><div style="text-align: center;">Vs.</div><div style="text-align: center;">The State of Tamil Nadu and Ors. <span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span>Respondents</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Hon'ble Judges/Coram:</div><div style="text-align: justify;">M.N. Bhandari, C.J. and N. Mala, J.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Counsels:</div><div style="text-align: justify;">For Appellant/Petitioner/Plaintiff: V.M. Venkatramana</div><div style="text-align: justify;">For Respondents/Defendant: A. Selvendran, Spl. Government Pleader</div><div style="text-align: justify;"><br /></div><div style="text-align: center;">ORDER</div><div style="text-align: justify;">M.N. Bhandari, C.J.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">1. By these writ petitions, a challenge is made to the notices issued in Form-III under Rule 6(1) of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Rules, 2007 [for brevity, "the Rules of 2007"].</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">2. The challenge to the notices has been made mainly on the ground that without issuing notices in Form-II, notices in Form-III have been caused. In the absence of notices in Form-II showing the boundary of the tank, it cannot be said that the petitioners have encroached on the lands of water tank. The second respondent ought to have called for the petitioners' explanation before issuing a notice in Form-III.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">3. Learned counsel for the petitioners submitted that notices in Form-III were given with a direction to remove the encroachments, leaving hardly any time for the petitioners to even approach the respondent authorities to seek survey of the land to get determination of the boundaries of the tank and, accordingly, writ petitions were filed even without raising objection to the notices in Form-III. The prayer is to set aside the notices looking to the peculiar facts and circumstances of the case.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">4. Learned counsel further submitted that notice to remove the encroachment cannot be caused without complying the principles of natural justice and, in the instant case, the petitioners were not given opportunity to prove their rightful possession on the land in question. It is also submitted that the petitioners are not in possession of the land of Odai, thus, prayed for an interference in the notices in Form-III of the Rules of 2007.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">5. Learned Government Pleader appearing for the respondents submitted that notices in Form-III were given in accordance with law. Coming to the facts, it is stated that notices in Form-III were given after publishing notices in Form-II. Further, the petitioners have failed to show their ownership on the land or right to possess it. The lands of tanks and waterbodies are required to be safeguarded and, therefore, notices were rightly issued to the petitioners.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">6. Learned Government Pleader further submitted that the Rules of 2007 do not contemplate an opportunity of hearing, but before action is taken, the encroacher has to be put to notice with a request to remove the encroachment and the compliance aforesaid has been duly made. Thus, a prayer is made to dismiss the writ petitions.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">7. We have considered the rival submissions and also perused the materials available on record.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">8. Before addressing the issues raised by the parties, it would be gainful to refer to the object behind the enactment of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 [for short, "the Act of 2007"]. The Act of 2007 provides measures for checking the encroachment on the land of tanks and at the same time for eviction. It would not be out of place to mention that on account of rampant encroachment on waterbodies and tanks, the State of Tamil Nadu suffered drought and in contrast floods. This happened for the reason that whenever there was rain, water could not accumulate in the tanks on account of encroachments and in contrast, the condition of the flood was seen at times due to non-availability of area where water can store on account of the encroachments on the waterbodies or tanks. The need of the hour is to protect/safeguard waterbodies/tanks.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">9. Before adverting to the merits of the case, it would be appropriate to refer to the relevant statutory provisions governing the issue. Section 7 of the Act of 2007 and Rule 6 of the Rules of 2007 read as under:</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Section 7 of the Act of 2007:</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">"7. Eviction of encroachment.-(1) If the officer specified in sub-section (2) of Section 6 is of opinion that any person has encroached upon any land within the boundaries of the tank and that the encroacher should be evicted, the officer shall issue a notice in the manner as may be prescribed, calling upon the person concerned to remove the encroachment before a date specified in the notice.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(2) Where, within the period specified in the notice under sub-section (1), the encroacher has not removed the encroachment and has not vacated the land within the boundaries of the tank, the officer referred to in sub-section (2) of section 6 shall remove the encroachment and take possession of the land within the boundaries of the tank encroached upon, by taking such police assistance as may be necessary. Any police officer whose help is required for this purpose shall render necessary help to that officer.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(3) Any crop or other product raised on the land within the boundaries of the tank shall be liable to forfeiture and any building or other construction erected or anything deposited thereon shall also, if not removed by the encroacher after a notice under subsection (1), be liable to forfeiture."</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Rule 6 of the Rules of 2007:</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">"6. Eviction of Encroachment.-(1) If any person has encroached upon any land of the tank, the officer referred to in sub-rule (3) of Rule 4, shall prepare a notice in Form III and call upon the person concerned to remove the encroachment.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(2) Notwithstanding anything contained in sub-rule (1), such notice shall be served by delivering a copy either to the encroacher or to a member of his family at his usual place of abode, or to his authorised agent, or by affixing a copy thereof in some conspicuous part of his last known residence or in any part of the area encroached upon or in any of the offices of the Village Chavadi, Village Panchayat, District Collector, Revenue Divisional Officer, Tahsildar, Village Administrative Officer, Panchayat Unions and in the Section, Sub-Division and Divisions concerned of the Water Resources Organisation of the Public Works Department as the officer deems fit and proper.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(3) If the encroacher has not removed the encroachment within the period specified in the notice referred to in sub-rule (1), the officer shall inform the area Station House officer of Police Department, in writing to provide adequate Police personnel, as may be necessary and shall remove the encroachment or obstructions or any building or any crop or any product raised on the land or anything deposited and forfeit them and take possession of the land as specified in sub-sections (2) and (3) of Section 7 of the Act.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(4) The officer shall also impose the cost of eviction against such person, by preferring a complaint against such person with the competent Judicial Magistrate for recovery."</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">10. It is not that the compliance of the aforesaid provisions has not been made, because compliance of Form-I and Form-II was made earlier to the notice in Form-III. Learned Government Pleader stated that boundaries of the tanks have been demarcated after causing survey and published on the notice board of the Public Works Department and based on the aforesaid only, notice in Form-III was issued. In the light of the aforesaid, we cannot accept the argument of learned counsel for the petitioners that notices in Form-III have been issued in violation of the provisions of the Act of 2007 and the Rules of 2007.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">11. The issue, however, remains is in reference to the judgment of this Court in the case of T.S. Senthil Kumar v. The Government of Tamil Nadu and others: (2010) 3 MLJ 771, where the provisions of the Act of 2007 and the Rules of 2007 were analysed. It was on the challenge to the constitutional validity of certain provisions. The challenge to the provisions was not accepted. It was held that for protection and improvement of environment, waterbodies, forests and wild life are to be safeguarded. It is after analysing the facts of that case and finding that safeguards are required to be taken to protect the tanks, the Division Bench referred to various judgments of the Apex Court, including the decision of a Division Bench of this court in L. Krishnan v. State of Tamil Nadu: AIR 2005 Mad 311, and observed in paragraph (8) as under:</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">"8. In L. Krishnan v. State of Tamil Nadu: A.I.R. 2005 Mad 311, the public interest litigation was filed for removal of encroachments on an odai poramboke and the First Bench of this Court made the following observations:</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">'5. Since time immemorial ponds, tanks and lakes have been used by the people of our Country, particularly in rural areas, for collecting rain water for use for various purposes. Such ponds, tanks and lakes have thus been an essential part of the people's natural resources. However in recent years these have been illegally encroached upon in many places by unscrupulous persons who have made their constructions thereon, or diverted them to other use. This has had an adverse effect on the lives of the people.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">6. It is also relevant to state that day in and day out, many such petitions are being filed by way of 'public interest litigation' alleging encroachments into ponds/tanks/lake/odai porambokes etc. in different parts of this State, more particularly in villages. Having regard to the acute water scarcity prevailing in the State of Tamil Nadu as a whole, we feel that a time has come where the State has to take some definite measures to restore the already ear marked water storage tanks, ponds and lakes, as disclosed in the revenue records to its original status as part of its rain water harvesting scheme. We also take judicial notice of the action initiated by the State Government by implementing the water harvesting scheme as a time bound programme in order to ensure that the frequent acute water scarcity prevailing in this State is solved as a long time measure. In fact, the classification as Ooranis, Odais, and Lakes in the revenue records are all areas identified in the villages where the rain water gets stored enabling the local villagers to use the same for various purposes throughout the year inasmuch as most parts of the State are solely dependent on seasonal rains both for agricultural operations as well as for other water requirements. Therefore, it is imperative that such natural resources providing for water storage facilities are maintained by the State Government by taking all possible steps both by taking preventive measures as well as by removal of unlawful encroachments.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">7. In this context, it will be appropriate to refer to the judgment of the Hon'ble Supreme Court reported in Hinch Lal Tiwari v. Kamala Devi and Ors: AIR 2001 SC 3215. Paragraphs 12 and 13 are relevant for our present purpose which read as under:</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">'12. On this finding, in our view, the High Court ought to have confirmed the order of the Commissioner. However, it proceeded to hold that considering the said report the area of 10 biswas could only be allotted and the remaining five biswas of land which have still the character of a pond, could not be allotted. In our view, it is difficult to sustain the impugned order of the High Court. There is concurrent finding that a pond exists and the area covered by it varies in the rainy season. In such a case no part of it could have been allotted to anybody for construction of house building or any allied purposes.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">13. It is important to notice that the material resources of the community like forests, tanks, ponds, hillock, mountain etc. are nature's bounty. They maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality life which is the essence of the guaranteed right under Article 21 of the Constitution. The Government, including the Revenue Authorities i.e. Respondents 11 to 13 having noticed that a pond is falling in disuse, should have bestowed their attention to develop the same which would, on one hand, have prevented ecological disaster and on the other provided better environment for the benefit of the public at large. Such vigil is the best protection against knavish attempts to seek allotment in non-abadi sites.'</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">8. A reading of the above referred passages of the said Judgment shows that the endeavour of the State should be to protect the material resources like forests, tanks, ponds, hillock, mountain, etc., in order to maintain the ecological balance. The Hon'ble Supreme Court has highlighted that such maintenance of ecological balance would pave the away to provide healthy environment which would enable the people to enjoy a quality life which is essence of the right guaranteed under Article 21 of the Constitution. While on the one hand, the State is bound to maintain the natural resources with a view to keep the ecological balance intact and thereby provide a healthy environment to the public at large in the State of Tamil Nadu, having regard to the precarious water situation prevailing in the major part of the year, it is imperative that such noted water storage resources, such as tanks, odais, oornis, canals etc. are not obliterated by encroachers.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">9. In this connection reference may be made to Article 48A of the Constitution which states:</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">'Protection and improvement of environment and safeguarding of forests and wild life: The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.'</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">10. No doubt the above provision is in the Directive Principles of State Policy, but it is now well settled that the fundamental rights and directive principles have to be read together, since it has been mentioned in Article 37 that the principles down in the Directive Principles are fundamental in the governance of the country and it is the duty of the State to apply these principles in making laws. The Directive Principles embody the aim and object of the State under a Republican Constitution, i.e., that it is a welfare State and not a mere police State, vide Kesavananda Bharati v. State of Kerala: (1973) 4 S.C.C. 225 (vide paragraphs-134, 139 and 1714) and embodies the ideal of socio-economic justice, vide Union of India v. Hindustan Development Corporation: A.I.R. 1994 S.C. 988 (990).</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">12. Apart from the above we may also refer to Article 51A(g) of the Constitution which makes it a fundamental duty of every citizen "to protect and improve the natural environment including forests, lakes, rivers and wild life". This duty can be enforced by the Court, vide Animal and Environment Legal Defence Fund v. Union of India: (1997) 3 S.C.C. 549 (supra, vide para-15).</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">13. In M.C. Mehta v. Union of India: (1997) 3 S.C.C. 715 (vide para-1) the Supreme Court observed:</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">'Articles 21, 47, 48-A and 51-A(g) of the Constitution of India give a clear mandate to the State to protect and improve the environment and to safeguard the forests and wildlife of the country. It is the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures. The "Precautionary Principle" makes it mandatory for the State Government to anticipate, prevent and attack the cause of environment degradation. We have no hesitation in holding that in order to protect the two lakes from environmental degradation it is necessary to limit the construction activity in the close vicinity of the lakes.'</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">14. Therefore, we direct the respondents 1 to 5 to take necessary legal steps to remove the alleged encroachments made by the respondents 6 to 12 as well as the petitioner over Odai Poramboke in Iyan Punji Survey No. 100/1 at No. 247, Tatchur Village, Kallakurichi Taluk, Villupuram District measuring 5 acres and 70 cents. Inasmuch as this writ petition has come before us by way of a public interest litigation, we take this opportunity to direct the State Government to identify all such natural water resources in different parts of the State and wherever illegal encroachments are found, initiate appropriate steps in accordance with the relevant provisions of law for restoring such natural water storage resources which have been classified as such in the revenue records to its original position so that the suffering of the people of the State due to water shortage is ameliorated.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">It is only after this judgment that the aforesaid Act came to be passed."</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">After considering the aforesaid decisions, the Division Bench in T.S. Senthil Kumar (supra), issued the following directions:</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">"20. In the result, we dispose of the writ petition in the same lines adopting the same method which the Supreme Court done in the two cases cited supra Mysore v. J.V. Bhat: 1975 (2) S.C.R. 407 and (ii) The Scheduled Caste & Weaker Section Welfare Association v. State of Karnataka: AIR 1991 SC 1117, where the Supreme Court dealt with the Mysore Slum (Improvement and Clearance) Act, 1958 and without declaring that the Act is unconstitutional since no opportunity is given, we will hold that there is nothing in the Act which excludes the principles of natural justice. The Act does not specifically indicate that the encroachers do not have a right to be heard and therefore we issue the following directions.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(a) The State shall scrupulously follow the provisions of the Act. It shall also ensure that all the District Collectors and other authorities, who are concerned with the observance of the provisions of the Act, strictly follow the letter, dated 10.10.2007.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(b) The District Collectors, while creating adequate awareness, may also enlist the help of Self Help Groups to disseminate the message that protection of water resources will actually promote the welfare of the villages and therefore it is in the interest of every citizen to make sure that he is not encroaching on a tank and to clear tanks and water bodies which are filled with garbage and to avoid dumping of garbage will automatically enhance and improve the public health of the community.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(c) As already stated, the State will ensure that alienation of tank poramboke lands, citing public interest, shall not be made under Section 12 of the Act. The meaning and weight of the words "public interest" shall be implicitly borne in mind.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(d) The State holds all the water bodies in public trust for the welfare of this generation and all the succeeding generations and, therefore, protecting water bodies must be given as much weightage, if not more as allowing house-sites or other buildings to come up on such tanks or tank poramboke lands, and water charged lands.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(e) The State shall also bear in mind the provisions of this Act and the objects and reasons of this Act while issuing patta to persons who claim to have resided in the same place for a number of years and if necessary modify the relevant Government Orders to make sure that the implementation of these G.Os. are not in violation of this very valuable and important Act, namely Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(f) We uphold the Act, while we provide for observance of principles of natural justice within the Act itself, as under.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(i) When the officer of the Public Works Department publishes the notice in Form-II in the notice boards of the offices of Village Administrative Officer, Village Panchayat Office and the Water Resources Organization, notice shall also be issued to the alleged encroacher to the effect that the survey indicates that the place in his/her occupation is an encroachment and secondly, the notice in Form-III of the Rules may be issued.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(ii) On receipt of the said notice, the encroacher may give his/her objections relating to the classification of the land in his/her occupation and the nature of the encroachment within a period of two weeks.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(iii) Thereafter, the authorities shall consider the objections and pass appropriate orders, in accordance with the provisions of the Act, giving time to the encroachers to remove the encroachment."</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">[emphasis supplied]</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">12. In T.K. Shanmugam v. State of Tamil Nadu: (2015) 8 MLJ 1 (FB), the Larger Bench of this Court considered the judgment of the Division Bench of this court in the case of L. Krishnan (supra) and held that the said decision did not limit its direction to water bodies under the control of Public Works Department and it will also apply to all natural water resources in different parts of the State. It was further held that wherever encroachments are found, steps should be taken for removal of it in accordance with the relevant provisions of law. Paragraphs (26) and (27) of the judgment in the case of T.K. Shanmugam (supra) are relevant and are quoted hereunder:</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">"26. Thus, the Division Bench in L. Krishnan, did not limit its direction to water bodies under the control of the Public Works Department. In fact, it has issued directions for all natural water resources in the different parts of the State of Tamil Nadu and wherever illegal encroachments are found to take steps for removal of the encroachments in accordance with the relevant provisions of law. The State Government thought fit to enact the Tank Act and though the object of the enactment was couched on a border principle, the Act was restricted to the encroachments in tanks which are under the control and management of the Public Works Department. The question would be as to whether this would in any manner alter the position or could have an effect of diluting the directions/observations of the Division Bench in L. Krishnan's case. The answer to this question shall be an emphatic "NO".</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">27. Section 11 of the Tank Act, specifically states that the operation of other laws not to be affected, as the provisions of the Tank Act shall be in addition to and not in derogation of any other law for time being in force. Thus, the encroachments in respect of water bodies which are not covered under the provisions of the Tank Act have to be necessarily removed by resorting to the procedure under the Land Encroachment Act. We are not inclined to ignore the directions issued by the Division Bench in L. Krishnan's case, as general observations, as observed in Sivakasi Region Tax Payers Association's case. We may hasten to add that in L. Krishnan's, the Division Bench issued positive direction to the State Government and this cannot be brushed aside as general observations and more so in the light of the observations in the case of Jagpal Singh, wherein pointed directions were issued by the Hon'ble Supreme Court to all the Chief Secretaries. In Sivakasi Region Tax Payers Association's case though the Division Bench upheld the G.O. Ms. No. 854, it held that the said G.O., must read along with the provisions of the Land Encroachment Act, Tank Act and Standing Orders of Board of Revenue. If that be the interpretation, the question would be whether the State Government would be empowered to issue Government Orders for regularising encroachments in water bodies on the ground that the water body has lost its character and it is no longer a water body on account of disuse. We may answer this query by referring to the observations of the Hon'ble Supreme Court in the case of Jagpal Singh:-</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">"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.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">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."</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">13. The notice in Form-III issued under Rule 6(1) of the Rules of 2007 contemplates that before the actual removal of the encroachment, the encroacher should be put to notice with reasonable time of 21 days to remove the encroachment.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">14. In view of the judgment in the case of T.S. Senthil Kumar (supra), principles of natural justice has to be followed and for that a party receiving notice in Form-III is given liberty to raise his objection relating to classification of the land or nature of encroachment within two weeks.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">15. The petitioners have approached this court without raising an objection or giving representation against the notices in Form-III. It is as per the judgment of the Division Bench of this court in the case of T.S. Senthil Kumar (supra) for observance of principles of natural justice. In case of submission of objection within two weeks of the notice, the authorities were directed to consider it and pass an order. The petitioners failed to raise objection on receipt of the notice. In any case, to afford an opportunity of hearing before encroachment is removed, the petitioners were allowed to raise their objections before this Court to touch upon the issue as to whether the petitioners can establish their right in the land in question.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">16. We have called upon learned counsel for the petitioners to refer the documents which may establish the right of the petitioners in the land in question so as to send the matter back to the authority concerned to pass an order on the objections, if any raised before this Court. It is for giving the opportunity of hearing to those having right in the land and not for one who has no legal right to defend. The post-decisional hearing is not required in such a matter where a party fails to establish his/her right even after an opportunity given by the Court.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">17. Learned counsel for the petitioners could not refer any document to prove right of the petitioners in the land in question. On the other hand, photographs have been shown by the petitioners to show that even the Public Works Department had constructed a road on the land of Odai and the land occupied by the petitioners are close to it. We cannot endorse the action of the Public Works Department, if they have constructed a road on the land of Odai, rather, in that case, even it needs to be removed. We otherwise cannot accept the argument aforesaid and if the said plea is accepted, then the encroachment overall in the State of Tamil Nadu on waterbodies and tanks cannot be removed though the encroachment on waterbodies and tanks is not permissible as per the provisions of the Act and the Rules and also the judgment of the Apex Court and even the judgment of the Larger Bench in the case of T.K. Shanmugam (supra). It does not permit or give authority to the Government to even issue patta in the land of waterbodies and tanks.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">18. When the petitioners failed to establish their right over the land in question and in the absence of an objection to the notice under challenge before approaching this Court, the allegation of non-compliance of Form-II remains for the sake of it. In this regard, it is appropriate to refer to the following paragraph of the judgment in the case of Escorts Farms Limited v. Commissioner: (2004) 4 SCC 281, wherein it is held as under:</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">"64. Right of hearing to a necessary party is a valuable right. Denial of such right is serious breach of statutory procedure prescribed and violation of rules of natural justice. In these appeals preferred by the holder of lands and some other transferees, we have found that the terms of government grant did not permit transfers of land without permission of the State as grantor. Remand of cases of a group of transferees who were not heard, would, therefore, be of no legal consequence, more so, when on this legal question all affected parties have got full opportunity of hearing before the High Court and in this appeal before this Court. Rules of natural justice are to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. In view of the legal position explained by us above, we, therefore, refrain from remanding these cases in exercise of our discretionary powers under Article 136 of the Constitution of India."</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">[emphasis supplied]</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">19. In the light of the judgment referred above, we are of the opinion that there would be no purpose in sending the matter back for hearing on the objections, when it was not even raised on receipt of the notice in Form-III to extend the benefit of the judgment in the case of T.S. Senthil Kumar (supra). The right to raise objection on receipt of the notice was given by this Court so that if right can be established in the land in question, the notice issued in Form-III may not be given effect. Admittedly, the petitioners have failed to show any right on the land in question.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">20. In the instant case, the action for removal was taken only pursuant to the order passed in W.P. No. 1372 of 2020 [D. Dayaanand v. The Secretary to Government and others], decided on 05.03.2020. Therein, the Co-ordinate Bench issued direction to the respondent authorities to remove the encroachments from the waterbodies and tanks and further to curtail the mushroom growth of the encroachments.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">21. Taking the overall facts into consideration and the fact that an opportunity of hearing has been given by this Court, the petitioners have failed to prove their right on the land. It cannot be on the ground that even the Public Works Department has constructed a road on the Odai and their possession is beyond the road. It does not establish a right to occupy the land without title. The petitioners have even failed to raise objection within two weeks of the notices as mandated by this Court in the case of T.S. Senthil Kumar (supra) and the judgment of the Larger Bench in the case of T.K. Shanmugam (supra). The petitioners failed to show any right in the land in question and even failed to submit objection to the notices in Form-III prior to approaching this Court. In our considered opinion, sending the matter back to give an opportunity of post-decisional hearing would be nothing but a futile exercise, especially when the matter pertains to encroachment on land of water tank and issue of boundary cannot be raised in a writ jurisdiction being a question of fact and otherwise without a right to occupy the land.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">22. The water bodies play a significant role in maintaining the ecology and environment, besides being a source of drinking water. Usage of land earmarked as waterbody for any other purpose would be detrimental to the society at large, as the State at times suffers drought and in contrast floods because water cannot accumulate on account of encroachments on the waterbodies/water tanks.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><b>23. The Apex Court in the case of Jagpal Singh v. State of Punjab: (2011) 11 SCC 396 held as under:</b></div><div style="text-align: justify;"><b><br /></b></div><div style="text-align: justify;"><b>"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.</b></div><div style="text-align: justify;"><b><br /></b></div><div style="text-align: justify;"><b>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 is not used for the common benefit of the villagers but misappropriated by certain individuals. The time has come when these malpractices must stop."</b></div><div style="text-align: justify;"><b><br /></b></div><div style="text-align: justify;">[emphasis supplied]</div><div style="text-align: justify;"><b><br /></b></div><div style="text-align: justify;"><b>The Apex Court has appreciated the ancestors who could foresee the value of water which is essentially required by everyone on the earth. The Apex Court in the case of Jagpal Singh (supra) had further observed that encroachments made by few greedy people on ponds contributed to water shortage in the country. Therefore, we need to give sanctity to the subject.</b></div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">24. Time and again, this court, held that unchecked encroachment of waterbodies has vastly reduced the area which was reserved in the interest of public and ecological balance. It is the bounden-duty of the officials of the Revenue Department and the Public Works Department to preserve and protect government lands which have been reserved for specific purposes. Indisputably, such encroachments could not have taken place without the knowledge of the authorities.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">25. Before parting with this case, it is necessary to observe that if rampant encroachment of waterbodies and tanks is regularised, it would lead to encouraging encroachments and the ultimate result would be facing drought and in contrast floods.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">26. If we take care of the nature, nature will take care of us. The problem of global warming is prevalent only because of the failure of the human being to take care of the nature. It is the bounden duty of every citizen to maintain water-bodies, tanks, grazing land and even forests. If we keep on affecting the nature, it would affect the human beings and it is happening day-in and day-out in the form of natural disasters like Tsunami, Earthquake, etc.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">27. In such view of the matter, we are unable to accept the prayer made by the petitioners to direct the Government to issue patta in respect of waterbodies/tanks. Rather, for that, the petitioners were given an opportunity to refer the provision of law, but they failed to do so.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">28. Finding that learned counsel for the petitioners could not refer to any right of the petitioners in the land in question and otherwise an opportunity of hearing has been given by this court, instead of sending the matter for post-decisional hearing, we hold that the petitioners have not made out a case warranting interference in the notices in Form-III impugned herein.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">29. Accordingly, the writ petitions fail and they are dismissed. There will be no order as to costs. Consequently, all connected miscellaneous petitions are closed.</div>Claim for Commonshttp://www.blogger.com/profile/06082132405339033351noreply@blogger.com0tag:blogger.com,1999:blog-5162401328122846212.post-67250976532714605632022-09-09T20:22:00.004+05:302022-09-09T20:23:15.807+05:30Andhra Pradesh HC: Gramakantam lands are not communal lands [05.05.2022]<div style="text-align: center;">IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI</div><div style="text-align: center;"><br /></div><div style="text-align: center;">W.P. No. 1402 of 2022</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Decided On: 05.05.2022</div><div style="text-align: justify;"><br /></div><div style="text-align: center;">Appellants: <span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span>Bhavani Mahila Trust (BMT)</div><div style="text-align: center;">Vs.</div><div style="text-align: center;">Respondent: <span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span>The State of Andhra Pradesh and Ors.</div><div style="text-align: center;"><br /></div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Hon'ble Judges/Coram: R. Raghunandan Rao, J.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Counsels:</div><div style="text-align: justify;">For Appellant/Petitioner/Plaintiff: T.V. Sridevi</div><div style="text-align: justify;">For Respondents/Defendant: Government Pleader and Koti Reddy Idamakanti, SC</div><div style="text-align: justify;"><br /></div><div style="text-align: center;">ORDER</div><div style="text-align: justify;">R. Raghunandan Rao, J.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">1. The case of the petitioner is:-</div><div style="text-align: justify;"><br /></div><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><div style="text-align: justify;">a) Smt. Late Nagandla Sambrajyam established Bhavani Mahila Mandali, in Peda kakani Mandal, Guntur District for upliftment of woman and girl child in 1967.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">b) The father of Smt. Late Nagandla Sambrajyam was the owner of various extents of land in the village including Ac. 0.54 cents in Sy. No. 560 of the village.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">c) He had settled this land along with other extents of land in favour of his son late Sri Nagandla Surya Narayana by way of a registered deed of settlement dated 17.02.1945.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">d) Upon demise of Sri Nagandla Surya Narayana, the said property, which included a tiled house in Ac. 0.06 cents in Sy. No. 560, devolved upon his daughter Smt. Late Nagandla Sambrajyam. This tiled house was dedicated to the Bhavani Mahila Mandali right from its inception 1967.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">e) After her demise, the deponent of the affidavit filed in support of the writ petition (hereinafter referred to as the Deponent) took charge and continued to run the said Bhavani Mahila Mandali. A deed of trust was also executed and registered before the Sub-Registrar, Pedakakani on 21.07.2014 showing that the office of the Trust was at D. No. 1-111, Pathuru situated in an extent of Ac. 0.06 cents in Sy. No. 560.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">f) The said tiled house is said to have been used for carrying out various activities for the development of women and girls in the area and photographs showing such activities have also been filed along with the writ petition.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">g) On 12.01.2022, the 5th respondent pasted a notice dated 06.01.2022 in Rc. No. 3/2022, issued under sections 58, 98 (10, 103 (60 read with G.O.Ms. No. 188, dated 21.07.2011, stating that the Bhavani Mahila Mandali is being run in Sy. No. 557 of Pedakakani village and since the said land was proposed to be used for construction of a library, the Bhavani Mahila Mandali was required to vacate the building within three days, failing which the land would be taken over.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">h) The petitioner Trust, upon coming to know of this notice informed the 5th respondent that the Bhavani Mahila Mandali was running in a private property and not in the Government land and requested the 5th respondent not to interfere with the possession of the petitioner-Trust.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">i) On 17.01.2022, the 5th respondent sought to demolish the building by using a JCB. At this stage, the petitioner has approached this Court by way of the present writ petition.</div></blockquote><div style="text-align: justify;"><br /></div><div style="text-align: justify;">2. By the time the matter came up before the Court on 21.01.2022, the tiled house was demolished and the material and assets of the petitioner, including computers etc., were taken away by the 5th Respondent. This Court on 21.01.2022, directed the 2nd respondent to survey the entire land in Sy. No. 560 and 557 of Pedakakani village and Mandal and submit a report to this Court by the next date of hearing as to whether the house bearing D. No. 1-111 in Sy. No. 560 of Pedakakani Village had been demolished by the 5th respondent or not. The report, filed by the 2nd respondent, will be considered in the course of this judgment.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">3. After the demolition of the building, the Petitioner amended its prayer and sought a declaration that the action of the 5th respondent in demolishing the tiled house of the petitioner, as arbitrary and violative of Article 14, 21 and 300A of the Constitution of India and for a consequential direction to the respondents either to restore possession of the property to the petitioner by constructing or by directing the respondent to pay compensation by initiating land acquisition proceedings under the Right To Fair Compensation And Transparency In Land Acquisition, Rehabilitation And Resettlement Act, 2013.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">4. The 5th respondent-Gram Panchayat filed a counter, stating thus:</div><div style="text-align: justify;"><br /></div><blockquote style="border: none; margin: 0 0 0 40px; padding: 0px;"><div style="text-align: justify;">A) A request arose from the villagers for setting up a library in the place of the tiled house in Sy. no. 557. On this request a gram sabha meeting was held on 07.10.2021, where a resolution was for construction of a library in the government site. Pursuant to this resolution, the Gram Panchayat also passed a resolution on 10.12.2021, to construct the library by removing the existing tiled house and other encroachments. A notice was issued on 06.01.2022 to the Deponent to vacate the tiled house. As an endorsement of receipt was not being given, the notice was pasted on the tiled house itself. As there was no response, another notice dated 10.01.2022, was served, giving further time. After the expiry of the time given in the notice, the tiled house was removed.</div></blockquote><div style="text-align: justify;"><br /></div><blockquote style="border: none; margin: 0 0 0 40px; padding: 0px;"><div style="text-align: justify;">B) The tiled house is situated in Sy. No. 557 of the village and not in Survey No. 560 as claimed by the petitioner. A sale deed was executed by the mother of the deponent of the writ affidavit in the year 1999. The schedule in this sale deed shows the Mahila Mandali as the western boundary of the property sold in Sy. No. 560/2. This shows that the tiled house was situated in Sy. No. 557 and not Sy. No. 560.</div></blockquote><div style="text-align: justify;"><br /></div><blockquote style="border: none; margin: 0 0 0 40px; padding: 0px;"><div style="text-align: justify;">C) The survey conducted by the 2nd respondent, District Collector shows that the tiled house is situated in Sy. No. 557 and the house bearing no. 1-111 is situated in Survey No. 172.</div></blockquote><div style="text-align: justify;"><br /></div><div style="text-align: justify;">5. During the pendency of the writ petition an I.A. No. 2 of 2022 was filed stating that the correct address of the demolished building was D. No. 5-128, Sivalayam Road, Pedakakani, Guntur District and the petitioner be permitted to make the necessary amendment in the affidavit and petition. It was the contention of the Petitioner that her mother was initially running the Mahila Mandali in House No. 5-94 and constructed a tiled house on the western side of House No. 5-94 and the same was given the number 5-128. The deponent owns and lives in house No. 1-111, which is the office of the petitioner, and the address of the tiled house was shown by mistake as 1-111 instead of 5-128. This application was allowed.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">6. The 2nd respondent had filed a report stating that:</div><div style="text-align: justify;"><br /></div><blockquote style="border: none; margin: 0 0 0 40px; padding: 0px;"><div style="text-align: justify;">A) The subject land admeasuring an extent of Ac. 0.06 cents is situated in South East corner of Sy. No. 557 of Pedakakani village and not in Sy. No. 560. So far as house bearing D. No. 1-111 is concerned the said house is about one kilometre away from the subject land. The house claimed by the petitioner situated in Sy. No. 557 was demolished.</div></blockquote><div style="text-align: justify;"><br /></div><blockquote style="border: none; margin: 0 0 0 40px; padding: 0px;"><div style="text-align: justify;">B) Apart from the meetings mentioned in the counter affidavit of the 5th respondent, a further Gram sabha was conducted on 06.01.2022 resolving to take over the government land Sy. No. 557 and to construct a library.</div></blockquote><div style="text-align: justify;"><br /></div><blockquote style="border: none; margin: 0 0 0 40px; padding: 0px;"><div style="text-align: justify;">C) The land where the demolished tiled house was situated in survey no. 557 was classified as Grama Kantam in the re-Settlement register. As per PRIS survey conducted in the year 2018 the subject land was noted as Government land.</div></blockquote><div style="text-align: justify;"><br /></div><blockquote style="border: none; margin: 0 0 0 40px; padding: 0px;"><div style="text-align: justify;">D) Notices dated 06.01.2022 and 10.1.2022 were sought to be served on the petitioner but were refused and the tiled house was removed on 17.01.2022 in the presence of Police and Revenue authorities.</div></blockquote><div style="text-align: justify;"><br /></div><blockquote style="border: none; margin: 0 0 0 40px; padding: 0px;"><div style="text-align: justify;">E) The extension Officer, Panchayat Raj, on the basis of the resolutions, had instructed the panchayat secretary to take necessary action to remove the tiled house as per the provisions of the Panchayat Raj Act and G.O.Ms. No. 188.</div></blockquote><div style="text-align: justify;"><br /></div><blockquote style="border: none; margin: 0 0 0 40px; padding: 0px;"><div style="text-align: justify;">F) The tiled house was having Door No. 19-15 and not 1-111.</div></blockquote><div style="text-align: justify;"><br /></div><blockquote style="border: none; margin: 0 0 0 40px; padding: 0px;"><div style="text-align: justify;">G) The notices issued on 06.01.2022 and 10.1.2022 did not call for any explanation and simply called upon the petitioner to vacate the tiled house.</div></blockquote><div style="text-align: justify;"><br /></div><blockquote style="border: none; margin: 0 0 0 40px; padding: 0px;"><div style="text-align: justify;">H) G.O.Ms. No. 188 requires a notice to be given for giving objections and eviction can be taken up only after a hearing is given. In the present case notices were served but no hearing was given and Disciplinary action was initiated against the Panchayat secretary and the Extension officer for not following the procedure.</div></blockquote><div style="text-align: justify;"><br /></div><div style="text-align: justify;">7. Heard Smt. T.V. Sridevi, learned counsel for the petitioner, Sri Koti Reddy Idamakanti, learned Standing Counsel appearing for the 5th respondent and the learned Government Pleader for Revenue for the 2nd respondent.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">8. The facts which can be culled out from the rival submissions made by all the parties in the writ petition are as follows:</div><div style="text-align: justify;"><br /></div><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><div style="text-align: justify;">a) There was a tiled house in Sy. No. 557, which was in the possession of the petitioners. It was the contention of the petitioners that this tiled house was in the possession of the petitioner and was being used by the petitioner from 1960s. None of the respondents have disputed this fact in their counter affidavits. It is therefore, held that the tiled house was in the possession of the petitioner and used by the petitioner since 1960s.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">b) The disputed Ac. 0.06 cents of land was classified as Gramakantam land in the resettlement register. The subsequent PRIS survey conducted in the year 2018, classifying this land as Government land cannot be taken into account unless and until the entries in the resettlement register are changed. Accordingly the disputed land shall be treated as Gramakantam land.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">c) Resolutions had been passed in the Gramasabha and Gram Panchayat to take over the disputed Ac. 0.06 cents of land and use the said land for constructing a library.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">d) On the basis of these resolutions, the Extension Officer, Panchayat Raj, directed the Panchayat Secretary to take steps to remove the tiled house as per the provisions of the Panchayat Raj Act and G.O.Ms. No. 188.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">e) On the basis of these instructions, the Panchayat Secretary issued notices dated 06.01.2022 and 10.01.2022 which was pasted on the tiled house and the said tiled house was demolished on 17.01.2022 after taking away all the material in the tiled house, belonging to the petitioner.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">f) The notice dated 06.01.2022 and 10.01.2022 only called upon the petitioner to vacate the tiled house and did not call upon the petitioner to show cause why the petitioner should not be evicted from the said house.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">g) This notice did not meet the basic requirements of G.O.Ms. No. 188.</div></blockquote><div style="text-align: justify;"><br /></div><div style="text-align: justify;">9. It is the contention of the 5th respondent that notices were issued under Section 58, 98 and 103 of the Panchayat Raj Act, 1994 read with G.O.Ms. No. 188. Section 58 vests certain properties including grazing grounds, threshing floors, burning and burial grounds, cattle stands, cart stands and topes, which are at the disposal of the Government and are not required by them for any specific purpose in the Gram Panchayat. The language of Section 58, which uses the word "namely" would mean that this is an exhaustive list. Section 98 authorises the Executive Authority to remove any projection, encroachment or obstruction over any public road vested in the Gram Panchayat, after notice being given to the owner of the building.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">10. Section 103 provides for recovery of penalty and compensation for unauthorised occupation of any land which is set apart for a public purpose and vests or belongs to the Gram Panchayat. It is clear that Section 98 does not apply to the present case as there is no complaint of any encroachment of a public road.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">11. Section 58 vests certain properties in the Gram Panchayat. The question whether Section 58 would vest all Gramakantam lands in the Gram Panchayat is considered in the course of this judgment. Section 103 provides for levy of penalty in case of unauthorised occupation of such properties. This would raise the question as to whether the land in question vests in the Gram Panchayat.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><b>12. The Government issued G.O.Ms. No. 188 dated 21.07.2011, in pursuance of the judgment of the Hon'ble Supreme Court in the case of Jagpal Singh and Ors., vs. State of Punjab in Civil Appeal. No. 1132 of 2011 dated 28.01.2011. The said G.O. classified the lands belonging to Gram Panchayats into three categories. We are presently concerned with Category-C in Rule 2, which states as follows:</b></div><div style="text-align: justify;"><b><br /></b></div><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><div style="text-align: justify;"><b>Category-C: Vested With Gram Panchayats.</b></div><div style="text-align: justify;"><b><br /></b></div><div style="text-align: justify;"><b>All public water works, All public water courses, Springs, Reservoirs, Tanks, cisterns, Fountains, Wells, Stand Pipes and other water works (as per section 80 of Andhra Pradesh, Panchayat Raj Act) Minor Irrigation Tanks, Tank bunds and all water bodies and vested porambokes (Grazing Lands threshing floors, Burning and Burial grounds, cattle stands, cart stands, topes. (These are essentially the same categories of land set out in Section 58(1) of the Panchayat Raj Act, which shall also be considered)</b></div></blockquote><div style="text-align: justify;"><br /></div><div style="text-align: justify;">13. The procedure, to be followed for protection of the Gram Panchayat properties, is given in Rules 3 and 4. Rule 3 requires the Panchayat Secretary of every Gram Panchayat to prepare an inventory of the landed properties of the Gram Panchayat based on Field Measurement Book and Field Survey Atlas, apart from the field survey inspections. The said inventory is to be placed before a Gramasabha, which shall approve the land inventory bills by passing a resolution. Subsequently, a Gram Panchayat would also convene a meeting and approve the land inventory bills by way of a resolution. The said approved land inventory bills would be published in the District Gazette.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">14. Rule 4 stipulates that where it is found that any property of the Panchayat is under the occupation of any other person, a notice would be served on the party concerned and the said party would be given a hearing before a proceeding for eviction. Obviously, such a hearing would include a hearing on the claims of that person over the property. After hearing the person, suitable orders would be passed by the Panchayat Secretary and eviction is to take place only after such orders are passed. It is also settled law that passing of orders would include service of such orders on the evicted party. This would mean that a person cannot be evicted without such an order being served on the said person.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">15. In the present case, there is no mention of any inventory having been prepared nor approved by either the Gramasabha or the Gram Panchayat under Rule 3. Keeping aside this issue, it can also be seen that the minimum requirement of Rule 4, namely, giving an opportunity of hearing to the petitioner and passing an order on the said objections filed by the petitioner before any eviction takes place, has been given a complete go by. In fact, the notices said to have been served on the petitioner only called upon the petitioner to vacate the premises and did not give the opportunity of hearing to the petitioner. This fact has also been noticed by the District Panchayat Officer in his report to the District Collector and disciplinary action is said to have been initiated against the Panchayat Secretary and the Extension Authority. On account of these deficiencies, the demolition of the tiled house of the petitioner was in clear violation of all the safeguards given in the Act and the Rules.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">16. Apart from the question of procedural irregularities, there remains the question whether such an eviction could have been carried out at all. The disputed land has been classified as Gramakantam land. The Respondent Gram Panchayat claims that the Gramkantam land vests in the Gram panchayat, by virtue of Section 58(1) of the Act and it would be entitled to recover the said land from unauthorized private occupation. Section 58(1) of the Panchayat Raj Act, 1994, reads as follows:</div><div style="text-align: justify;"><br /></div><blockquote style="border: none; margin: 0 0 0 40px; padding: 0px;"><div style="text-align: justify;">"58. Certain Government porambokes to vest in Gram Panchayat etc.:- (1) The following porambokes namely, grazing grounds, threshing floors, burning and burial grounds, cattle stands, cart stands and topes, which are at the disposal of the Government and are not required by them for any specific purpose shall vest in the Gram Panchayat subject to such restrictions and control as may be prescribed"</div></blockquote><div style="text-align: justify;"><br /></div><div style="text-align: justify;">17. In Banne Gandhi and Ors., vs. District Collector, Ranga Reddy District and Ors., 2007 (4) ALT 550 it was held that since Section 58(1) does not enumerate Gramkantam land, as vesting in the Gram Panchayat, it cannot be held that Gramkantam land vests in the gram panchayat.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">18. In Sigadapu Vijaya vs. State Of Andhra Pradesh, 2015 (4) ALT 296 the petitioners had approached the court with the complaint that the registration authorities were refusing to register transactions relating to Gramkantam lands on the ground that Gramkantam lands are government lands. It was held, after an extensive review of the judgments pronounced on this subject that, "occupied Gramkantam by its nature or classification does not belong to the government to include the Gramkantam in the prohibitory list". It must also be recorded that the judgments cited in this case had also considered the question whether Gramkantam lands would be communal lands and the consensus in all these judgments was that Gramakantam lands are not communal lands kept aside for communal use, such as threshing floors or burial grounds. On the contrary they held that Gramanatham or Gramkantam lands are lands kept aside for construction of houses and any such land in the occupation of an individual would entitle him to protect such possession by way of legal proceedings also.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">19. In Bayya Mahadeva Satry vs. State of Andhra Pradesh 2020 (4) ALT 250 a learned single judge of this Court, following the aforesaid judgments and other judgments mentioned therein, had held:</div><div style="text-align: justify;"><br /></div><blockquote style="border: none; margin: 0 0 0 40px; padding: 0px;"><div style="text-align: justify;">"Thus from the above jurisprudence on the subject in issue, it can be delineated that the Gramkantam land whereon the houses are constructed or intended to be constructed does not vest with either the Government or the Gram Panchayat. In that view, even if the argument of the respondents is accepted that the subject land is a Gramakantam and occupied by the petitioners, that fact will not ensure to the benefit of the respondents to confer any title on them. Thus, either way the respondents cannot meddle with the possession and enjoyment of the petitioners in respect of the subject land and their construction of compound wall"</div></blockquote><div style="text-align: justify;"><br /></div><div style="text-align: justify;">20. In the present case, it is the admitted case of all sides that the petitioner has been in long standing possession of the tiled house since the 1960s. Viewed either from the standpoint of Section 58(1) of the A.P. Panchayat Raj Act, 1994 or from the standpoint of decided cases, occupied Gramkantam land is not the property of the Gram Panchayat to invoke the provisions of either section 98 or 103 of the A.P. Panchayat Raj Act, 1994 or the mechanism under G.O.Ms. No. 188, dated 21.07.2011.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">21. Accordingly, the demolition of the tiled house in the possession of the petitioner is clearly beyond the authority of the 5th respondent. As the demolition of the tiled house of the petitioner is in violation of both procedural and substantive law, it must be held that the entire action is illegal, arbitrary and violative of the rights of the petitioner including the rights guaranteed in Article 14 & 300-A of the Constitution of India.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">22. The complaint of the petitioner is that there was an illegal demolition of the tiled house and the 5th respondent had illegally taken away the computers and other equipment and material of the petitioners situated in the tiled house. The 5th respondent did not deny the contention of the petitioner that the computers and other material of the petitioner have been taken away by the 5th respondent. There remains the question of compensation to the petitioner. The petitioner is entitled to be put back in the same position as it was before the illegal demolition of its property.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">23. The tiled house in the occupation of the petitioner has been demolished illegally and once this Court has given a finding that the demolition was illegal, both procedurally and substantively, the petitioner would be entitled to be restored back to the same position as was obtaining prior to the demolition. This would mean that the tiled house of the petitioner has to be reconstructed and the equipment and material of the petitioner which has been removed from the said tiled house would have to be returned to the petitioner. In the event of any damage to the said material, the petitioner would be entitled to be compensated for the loss caused due to such demolition.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">24. For all the aforesaid reasons, the writ petition is disposed of with the following directions:</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">1. As a measure of restitution, the 5th respondent shall bear the entire cost of reconstruction of tiled house by the petitioner. This construction shall be for the purpose of reconstructing the tiled house with the same dimensions as was obtaining earlier.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">2. For the purpose of such construction, the 5th respondent shall pay a provisional amount of Rs. 2,00,000/- to the petitioner within a period of three weeks from the date of receipt of a copy of this order.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">3. The petitioner shall be permitted to reconstruct the tiled house without having to obtain any building permission or any approval from the 5th respondent or any other authority.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">4. The petitioner, after reconstruction of the said tiled house, is entitled to recover from the 5th respondent such additional amounts that the petitioner may have spent over and above the provisional amount of Rs. 2,00,000/-.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">5. There shall also be a direction to the 5th respondent to return all the material taken away by the 5th respondent from the tiled house, which was in the possession of the petitioner, forthwith.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">6. In the event of any shortfall in the material that had been taken away or in the event of any damage to the said computers, the petitioner is entitled to recover compensation on account of such damage or shortfall.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">7. For the purpose of such recovery of money both on account of restoration of the house, if any, and on account of damage caused to the property of the petitioner, it shall be open to the petitioner to initiate a civil action for recovery of such damages and compensation. There shall be no order as to costs.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">As a sequel, pending miscellaneous petitions, if any, shall stand, closed.</div>Claim for Commonshttp://www.blogger.com/profile/06082132405339033351noreply@blogger.com0tag:blogger.com,1999:blog-5162401328122846212.post-35350880263123218112022-09-07T15:40:00.005+05:302022-09-07T15:40:47.967+05:30Madras HC: Usage of land earmarked as waterbody for any other purpose is detrimental to society [07.07.2022]<div style="text-align: center;">IN THE HIGH COURT OF JUDICATURE AT MADRAS </div><div><br /></div><div>DATED: 07.07.2022 </div><div> </div><div>CORAM: </div><div>THE HON'BLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE AND </div><div>THE HON'BLE MRS. JUSTICE N.MALA </div><div><br /></div><div style="text-align: center;">W.P.Nos.13666, 13675, 13677, 13687, 13669, 13742, 13756, </div><div style="text-align: center;">13745, 13750, 13753, 13749, 13754, 13758, 13760, 13761, </div><div style="text-align: center;">13776, 13778, 13780, 13781, 13783, 13877, 13881, </div><div style="text-align: center;">13891, 13886, 13879, 13883, 13897, 13890, 13892, </div><div style="text-align: center;">13901, 13904, 13907, 13910, 13915, 13917, 13931, </div><div style="text-align: center;">13934, 13935, 13941, 13940 of 2022 </div><div style="text-align: center;"> and </div><div style="text-align: center;"> W.M.P.Nos.12937, 12922, 12928, 12933, 12948, </div><div style="text-align: center;">13038, 13045,
13049, 13051, 13056, 13058, 13055, 13059, </div><div style="text-align: center;">13060, 13050, 13076, 13078, 13072, 13073, 13074, 13144, </div><div style="text-align: center;">13147, 13149, 13153, 13152, 13151, 13154, 13155, </div><div style="text-align: center;">13157, 13159, 13165,
13167, 13177, 13168, 13173, 13193, </div><div style="text-align: center;">13194, 13188, 13185,
13187 of 2022
W.P.No.13666 of 2022: </div><div><br /></div><div>M. Surya <span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span>... Petitioner </div><div style="text-align: center;">Vs </div><div><br /></div><div>1.The Section Officer,
Water Resources Department, </div><div>Redhills Irrigation Division,
Redhills,
Chennai - 600 052. </div><div><br /></div><div>2.The Tahsildar,
Madhavaram Taluk,
Taluk Office, </div><div>Madhavaram,
Chennai-600 060. <span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span>.. Respondents</div><div><br /><div style="text-align: justify;">Prayer in W.P.No.13666 of 2022: Petition filed under Article 226 of the Constitution of India praying for a writ of certiorari calling for the records pertaining to the Form III notice to order removal of encroachment dated 13.05.2022, made in Notice No.688/S.O./2022 on the file of the first respondent made under Rule 6(1) of the Tamil Nadu Protection of Tank and Eviction of Encroachment Rules, 2007 and quash the same.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">For the Petitioner: Mr. T. Murugamanickam Senior Counsel for Mr.V.Rajesh </div><div style="text-align: justify;">For the Respondents: Mr. J. Ravindran Addl. Advocate General </div><div style="text-align: justify;">Mr. P. Muthukumar State Government Pleader </div><div style="text-align: justify;">Mr. A. Selvendran Spl. Government Pleader </div><div style="text-align: justify;"><br /></div><div style="text-align: center;">COMMON ORDER </div><div style="text-align: center;">(Order of the Court was made by the Hon'ble Chief Justice) </div><div style="text-align: center;"><br /></div><div style="text-align: justify;">By these writ petitions, a challenge is made to the notices issued in Form-III under Rule 6(1) of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Rules, 2007 [for brevity, "the Rules of 2007"].</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">2. The challenge to the notices has been made mainly on the ground that without publishing notices in Form-II on the notice board of the office of the Village Panchayat with a copy to the petitioner, notices in Form-III have been caused. In the absence of notices in Form-II showing the boundary of the tank, it cannot be said that the petitioners have encroached on the lands of water tank and, accordingly, this Court, while hearing the writ petitions, at the initial stage, passed an interim order on 01.06.2022. It is after referring to the judgment of this Court in the case of T.S.Senthil Kumar v. The Government of Tamil Nadu and others (2010) 3 MLJ 771.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Therein the provisions of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007 [for short, "the Act of 2007"] and Rules of 2007 were declared to be constitutionally valid and it was held that on issuance of a notice in Form-III to the encroachers, he may give objections within two weeks and the same should be considered by the authorities and pass an order in accordance with the provisions of the Act of 2007. Since the aforesaid procedure was not complied with, Coordinate Bench of this Court passed the interim order.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">3. Learned senior counsel submits that notices in Form-III were given with a direction to remove the encroachments within 21 days, leaving hardly any time for the petitioners to even approach the respondent authorities to seek survey of the land and to get determination of the boundaries of the tank and, accordingly, writ petitions were filed even without raising objection to the notices in Form-III. The prayer is to set aside the notices looking to the peculiar facts and circumstances of the case.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">4. Learned senior counsel lastly contended that notice to remove the encroachment cannot be caused without complying the principles of natural justice and, in the instant case, the petitioners were not given opportunity to prove their rightful possession of the land in question. It is also submitted that the petitioners are not in possession of the land of the water tank, thus, prayed that an interference to the notices in Form-III of the Rules of 2007.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">5. Learned Government Pleader appearing for the respondents submitted that notices in Form-III were given in accordance with law.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Coming to the facts, it is stated that notices in Form-III were given after publishing the notices in Form-II on the notice board of the office of the Village Panchayat. Further, the petitioners have failed to show their ownership on the land or right to possess it. The lands of tanks and waterbodies are required to be safeguarded and, therefore, notices were rightly issued to the petitioners.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">6. Learned Government Pleader further submitted that the Act of 2007 and the Rules of 2007 do not contemplate an opportunity of hearing, but before action is taken, the encroacher has to be put to notice with a request to remove the encroachment and the compliance aforesaid has been duly made. Thus, a prayer is made to dismiss the writ petitions.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">7. We have considered the rival submissions and also perused the materials available on record.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">8. Before addressing the issues raised by the parties, it would be gainful to refer to the object behind the enactment of the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The Act of 2007 provides measures for checking the encroachment on the land of tanks and at the same time for eviction. It would not be out of place to mention that on account of rampant encroachment on waterbodies and tanks, the State of Tamil Nadu suffered drought and in contrast floods. This happened only for the reason that whenever there was rain, water could not accumulate in the tanks on account of encroachments and in contrast, the condition of the flood was seen at times due to non-availability of area where water can store on account of the encroachments on the waterbodies or tanks. The need of the hour is to protect/safeguard waterbodies/tanks.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">9. Before adverting to the merits of the case, it would be appropriate to refer to the relevant statutory provisions governing the issue. Section 7 of the Act of 2007 and Rule 6 of the Rules of 2007 read as under:Section 7 of the Act of 2007:</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">“7. Eviction of encroachment. - (1) If the officer specified in sub-section (2) of Section 6 is of opinion that any person has encroached upon any land within the boundaries of the tank and that the encroacher should be evicted, the officer shall issue a notice in the manner as may be prescribed, calling upon the person concerned to remove the encroachment before a date specified in the notice.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(2) Where, within the period specified in the notice under sub-section (1), the encroacher has not removed the encroachment and has not vacated the land within the boundaries of the tank, the officer referred to in sub-section (2) of section 6 shall remove the encroachment and take possession of the land within the boundaries of the tank encroached upon, by taking such police assistance as may be necessary. Any police officer whose help is required for this purpose shall render necessary help to that officer.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(3) Any crop or other product raised on the land within the boundaries of the tank shall be liable to forfeiture and any building or other construction erected or anything deposited thereon shall also, if not removed by the encroacher after a notice under subsection (1), be liable to forfeiture.” Rule 6 of the Rules of 2007:</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">“6. Eviction of Encroachment.- (1) If any person has encroached upon any land of the tank, the officer referred to in sub-rule (3) of Rule 4, shall prepare a notice in Form lll and call upon the person concerned to remove the encroachment.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(2) Notwithstanding anything contained in sub-rule (1), such notice shall be served by delivering a copy either to the encroacher or to a member of his family at his usual place of abode, or to his authorised agent, or by affixing a copy thereof in some conspicuous part of his last known residence or in any part of the area encroached upon or in any of the offices of the Village Chavadi, Village Panchayat, District Collector, Revenue Divisional Officer, Tahsildar, Village Administrative Officer, Panchayat Unions and in the Section, Sub-Division and Divisions concerned of the Water Resources Organisation of the Public Works Department as the officer deems fit and proper.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(3) If the encroacher has not removed the encroachment within the period specified in the notice referred to in sub-rule (1), the officer shall inform the area Station House officer of Police Department, in writing to provide adequate Police personnel, as may be necessary and shall remove the encroachment or obstructions or any building or any crop or any product raised on the land or anything deposited and forfeit them and take possession of the land as specified in sub- sections (2) and (3) of Section 7 of the Act.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(4) The officer shall also impose the cost of eviction against such person, by preferring a complaint against such person with the competent Judicial Magistrate for recovery.”</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">10. It is not that the compliance of the aforesaid provisions has not been made, because compliance of Form-I and Form-II was made earlier to the notice in Form-III. Learned Government Pleader stated that boundaries of the tanks have been demarcated after causing survey and published on the notice board of the Village Panchayat and based on the aforesaid only, notice in Form-III was issued. In the light of the aforesaid, we cannot accept the argument of learned senior counsel for the petitioners that notices in Form-III have been issued in violation of the provisions of the Act of 2007 and the Rules of 2007.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">11. The issue, however, remains is in reference to the judgment of this Court in the case of T.S.Senthil Kumar (supra), where the provisions of the Act of 2007 and the Rules of 2007 were analysed. It was on the challenge to the constitutional validity of certain provisions. The challenge to the provisions was not accepted. It was held that protection and improvement of environment and safeguarding of waterbodies, forests and wild life is required. It is after analysing the facts of that case and finding that safeguards are required to be taken to protect the tanks, the Division Bench referred to various judgments of the Apex Court, including the decision of a Division Bench of this court in L. Krishnan v. State of Tamil Nadu, AIR 2005 Mad 311, and observed in paragraph (8) as under:</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">"8. In L. Krishnan v. State of Tamil Nadu A.I.R. 2005 Mad 311, the public interest litigation was filed for removal of encroachments on an odai poramboke and the First Bench of this Court made the following observations:</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">'5. Since time immemorial ponds, tanks and lakes have been used by the people of our Country, particularly in rural areas, for collecting rain water for use for various purposes. Such ponds, tanks and lakes have thus been an essential part of the people's natural resources. However in recent years these have been illegally encroached upon in many places by unscrupulous persons who have made their constructions thereon, or diverted them to other use. This has had an adverse effect on the lives of the people.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">6. It is also relevant to state that day in and day out, many such petitions are being filed by way of 'public interest litigation' alleging encroachments into ponds/tanks/lake/odai porambokes etc. in different parts of this State, more particularly in villages. Having regard to the acute water scarcity prevailing in the State of Tamil Nadu as a whole, we feel that a time has come where the State has to take some definite measures to restore the already ear marked water storage tanks, ponds and lakes, as disclosed in the revenue records to its original status as part of its rain water harvesting scheme. We also take judicial notice of the action initiated by the State Government by implementing the water harvesting scheme as a time bound programme in order to ensure that the frequent acute water scarcity prevailing in this State is solved as a long time measure. In fact, the classification as Ooranis, Odais, and Lakes in the revenue records are all areas identified in the villages where the rain water gets stored enabling the local villagers to use the same for various purposes throughout the year inasmuch as most parts of the State are solely dependent on seasonal rains both for agricultural operations as well as for other water requirements. Therefore, it is imperative that such natural resources providing for water storage facilities are maintained by the State Government by taking all possible steps both by taking preventive measures as well as by removal of unlawful encroachments.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">7. In this context, it will be appropriate to refer to the judgment of the Hon'ble Supreme Court reported in Hinch Lal Tiwari v. Kamala Devi and Ors. MANU/SC/0410/2001: AIR 2001 SC 3215. Paragraphs 12 and 13 are relevant for our present purpose which read as under:</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">'12. On this finding, in our view, the High Court ought to have confirmed the order of the Commissioner. However, it proceeded to hold that considering the said report the area of 10 biswas could only be allotted and the remaining five biswas of land which have still the character of a pond, could not be allotted. In our view, it is difficult to sustain the impugned order of the High Court. There is concurrent finding that a pond exists and the area covered by it varies in the rainy season. In such a case no part of it could have been allotted to anybody for construction of house building or any allied purposes.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">13. It is important to notice that the material resources of the community like forests, tanks, ponds, hillock, mountain etc. are nature' s bounty. They maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality life which is the essence of the guaranteed right under Article 21 of the Constitution. The Government, including the Revenue Authorities i.e. Respondents 11 to 13 having noticed that a pond is falling in disuse, should have bestowed their attention to develop the same which would, on one hand, have prevented ecological disaster and on the other provided better environment for the benefit of the public at large. Such vigil is the best protection against knavish attempts to seek allotment in non-abadi sites.'</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">8. A reading of the above referred passages of the said Judgment shows that the endeavour of the State should be to protect the material resources like forests, tanks, ponds, hillock, mountain, etc., in order to maintain the ecological balance. The Hon'ble Supreme Court has highlighted that such maintenance of ecological balance would pave the away to provide healthy environment which would enable the people to enjoy a quality life which is essence of the right guaranteed under Article 21 of the Constitution. While on the one hand, the State is bound to maintain the natural resources with a view to keep the ecological balance intact and thereby provide a healthy environment to the public at large in the State of Tamil Nadu, having regard to the precarious water situation prevailing in the major part of the year, it is imperative that such noted water storage resources, such as tanks, odais, oornis, canals etc. are not obliterated by encroachers.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">9. In this connection reference may be made to Article 48A of the Constitution which states:</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">'Protection and improvement of environment and safeguarding of forests and wild life: The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.'</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">10. No doubt the above provision is in the Directive Principles of State Policy, but it is now well settled that the fundamental rights and directive principles have to be read together, since it has been mentioned in Article 37 that the principles down in the Directive Principles are fundamental in the governance of the country and it is the duty of the State to apply these principles in making laws. The Directive Principles embody the aim and object of the State under a Republican Constitution, i.e., that it is a welfare State and not a mere police State, vide Kesavananda Bharati v. State of Kerala (1973) 4 S.C.C. 225 (vide paragraphs - 134, 139 and 1714) and embodies the ideal of socio-economic justice, vide Union of India v. Hindustan Development Corporation A.I.R. 1994 S.C. 988 (990).</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">12. Apart from the above we may also refer to Article 51A(g) of the Constitution which makes it a fundamental duty of every citizen "to protect and improve the natural environment including forests, lakes, rivers and wild life". This duty can be enforced by the Court, vide Animal and Environment Legal Defence Fund v. Union of India (1997) 3 S.C.C. 549 (supra, vide para-15).</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">13. In M.C. Mehta v. Union of India (1997) 3 S.C.C. 715 (vide para - 1) the Supreme Court observed:</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">'Articles 21, 47, 48-A and 51-A(g) of the Constitution of India give a clear mandate to the State to protect and improve the environment and to safeguard the forests and wildlife of the country. It is the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures. The "Precautionary Principle"</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">makes it mandatory for the State Government to anticipate, prevent and attack the cause of environment degradation. We have no hesitation in holding that in order to protect the two lakes from environmental degradation it is necessary to limit the construction activity in the close vicinity of the lakes.'</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">14. Therefore, we direct the respondents 1 to 5 to take necessary legal steps to remove the alleged encroachments made by the respondents 6 to 12 as well as the petitioner over Odai Poramboke in Iyan Punji Survey No. 100/1 at No. 247, Tatchur Village, Kallakurichi Taluk, Villupuram District measuring 5 acres and 70 cents. Inasmuch as this writ petition has come before us by way of a public interest litigation, we take this opportunity to direct the State Government to identify all such natural water resources in different parts of the State and wherever illegal encroachments are found, initiate appropriate steps in accordance with the relevant provisions of law for restoring such natural water storage resources which have been classified as such in the revenue records to its original position so that the suffering of the people of the State due to water shortage is ameliorated.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">It is only after this judgment that the aforesaid Act came to be passed."</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">After considering the aforesaid decisions, the Division Bench in T.S.Senthil Kumar (supra), issued the following directions:</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">"20. In the result, we dispose of the writ petition in the same lines adopting the same method which the Supreme Court done in the two cases cited supra Mysore v. J.V. Bhat, 1975 (2) S.C.R. 407 and (ii) The Scheduled Caste & Weaker Section Welfare Association v. State of Karnataka, AIR 1991 SC 1117, where the Supreme Court dealt with the Mysore Slum (Improvement and Clearance) Act, 1958 and without declaring that the Act is unconstitutional since no opportunity is given, we will hold that there is nothing in the Act which excludes the principles of natural justice. The Act does not specifically indicate that the encroachers do not have a right to be heard and therefore we issue the following directions.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(a) The State shall scrupulously follow the provisions of the Act. It shall also ensure that all the District Collectors and other authorities, who are concerned with the observance of the provisions of the Act, strictly follow the letter, dated 10.10.2007.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(b) The District Collectors, while creating adequate awareness, may also enlist the help of Self Help Groups to disseminate the message that protection of water resources will actually promote the welfare of the villages and therefore it is in the interest of every citizen to make sure that he is not encroaching on a tank and to clear tanks and water bodies which are filled with garbage and to avoid dumping of garbage will automatically enhance and improve the public health of the community.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(c) As already stated, the State will ensure that alienation of tank poramboke lands, citing public interest, shall not be made under Section 12 of the Act. The meaning and weight of the words "public interest" shall be implicitly borne in mind.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(d) The State holds all the water bodies in public trust for the welfare of this generation and all the succeeding generations and, therefore, protecting water bodies must be given as much weightage, if not more as allowing house-sites or other buildings to come up on such tanks or tank poramboke lands, and water charged lands.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(e) The State shall also bear in mind the provisions of this Act and the objects and reasons of this Act while issuing patta to persons who claim to have resided in the same place for a number of years and if necessary modify the relevant Government Orders to make sure that the implementation of these G.Os. are not in violation of this very valuable and important Act, namely Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(f) We uphold the Act, while we provide for observance of principles of natural justice within the Act itself, as under.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(i) When the officer of the Public Works Department publishes the notice in Form- II in the notice boards of the offices of Village Administrative Officer, Village Panchayat Office and the Water Resources Organization, notice shall also be issued to the alleged encroacher to the effect that the survey indicates that the place in his/her occupation is an encroachment and secondly, the notice in Form-III of the Rules may be issued.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(ii) On receipt of the said notice, the encroacher may give his/her objections relating to the classification of the land in his/her occupation and the nature of the encroachment within a period of two weeks.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(iii) Thereafter, the authorities shall consider the objections and pass appropriate orders, in accordance with the provisions of the Act, giving time to the encroachers to remove the encroachment."</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">[emphasis supplied]</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">12. In T.K.Shanmugam v. State of Tamil Nadu, (2015) 8 MLJ 1 (FB), the Larger Bench of this Court considered the judgment of the Division Bench of this court in the case of L.Krishnan (supra) and held that the said decision did not limit its direction to water bodies under the control of Public Works Department and it will also apply to all natural water resources in different parts of the State. It was further held that wherever encroachments are found, steps should be taken for removal of it in accordance with the relevant provisions of law. Paragraphs (26) and (27) of the judgment in the case of T.K.Shanmugam (supra) are relevant and are quoted hereunder:</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">"26. Thus, the Division Bench in L. Krishnan, did not limit its direction to water bodies under the control of the Public Works Department. In fact, it has issued directions for all natural water resources in the different parts of the State of Tamil Nadu and wherever illegal encroachments are found to take steps for removal of the encroachments in accordance with the relevant provisions of law. The State Government thought fit to enact the Tank Act and though the object of the enactment was couched on a border principle, the Act was restricted to the encroachments in tanks which are under the control and management of the Public Works Department. The question would be as to whether this would in any manner alter the position or could have an effect of diluting the directions/observations of the Division Bench in L. Krishnan's case. The answer to this question shall be an emphatic "NO".</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">27. Section 11 of the Tank Act, specifically states that the operation of other laws not to be affected, as the provisions of the Tank Act shall be in addition to and not in derogation of any other law for time being in force. Thus, the encroachments in respect of water bodies which are not covered under the provisions of the Tank Act have to be necessarily removed by resorting to the procedure under the Land Encroachment Act. We are not inclined to ignore the directions issued by the Division Bench in L. Krishnan's case, as general observations, as observed in Sivakasi Region Tax Payers Association's case. <b>We may hasten to add that in L. Krishnan's, the Division Bench issued positive direction to the State Government and this cannot be brushed aside as general observations and more so in the light of the observations in the case of Jagpal Singh, wherein pointed directions were issued by the Hon'ble Supreme Court to all the Chief Secretaries. In Sivakasi Region Tax Payers Association's case though the Division Bench upheld the G.O. Ms. No. 854, it held that the said G.O., must read along with the provisions of the Land Encroachment Act, Tank Act and Standing Orders of Board of Revenue. If that be the interpretation, the question would be whether the State Government would be empowered to issue Government Orders for regularising encroachments in water bodies on the ground that the water body has lost its character and it is no longer a water body on account of disuse. We may answer this query by referring to the observations of the Hon'ble Supreme Court in the case of Jagpal Singh:-</b></div><div style="text-align: justify;"><b><br /></b></div><div style="text-align: justify;"><b>"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.</b></div><div style="text-align: justify;"><b><br /></b></div><div style="text-align: justify;"><b>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."</b></div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">13. The notice in Form-III issued under Rule 6(1) of the Rules of 2007 contemplates that before the actual removal of the encroachment, the encroacher should be put to notice with reasonable time of 21 days to remove the encroachment.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">14. The petitioners have approached this court even without raising an objection or giving representation against the notices in Form-III. It is as per the judgment of the Division Bench of this court in the case of T.S.Senthil Kumar (supra) for observance of principles of natural justice. In case of submission of objection filed within two weeks, the authorities were directed to consider it and pass an order.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The petitioners failed to raise objection on receipt of the notice. In any case, to afford an opportunity of hearing before encroachment is removed, the petitioners were allowed to raise their objections before this Court to touch upon the issue as to whether the petitioners could establish any right in the land in question. We have called upon learned senior counsel for the petitioners to refer the documents which may establish the right of the petitioners in the land in question so as to send the matter back to the authority concerned to pass an order on the objections, if any. It is for the reason that the opportunity of hearing is required to be given when the right of the parties is infringed and not for one who has no legal right to defend.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Learned senior counsel for the petitioners could not refer any document to prove the right of the petitioners in the land in question.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">When the petitioners failed to establish their right over the land in question, they are not having any ground to question the survey and determination of boundary of the water tank. In the absence of an objection to the notice under challenge before approaching this Court and even material to prove right on the land in question, the allegation of non-compliance of Form-II remains for the sake of it. In this regard, it is appropriate to refer to the following paragraph of the judgment in the case of Escorts Farms Limited v. Commissioner, (2004) 4 SCC 281, wherein it is held as under:</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">“64. Right of hearing to a necessary party is a valuable right. Denial of such right is serious breach of statutory procedure prescribed and violation of rules of natural justice. In these appeals preferred by the holder of lands and some other transferees, we have found that the terms of government grant did not permit transfers of land without permission of the State as grantor. Remand of cases of a group of transferees who were not heard, would, therefore, be of no legal consequence, more so, when on this legal question all affected parties have got full opportunity of hearing before the High Court and in this appeal before this Court. Rules of natural justice are to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. In view of the legal position explained by us above, we, therefore, refrain from remanding these cases in exercise of our discretionary powers under Article 136 of the Constitution of India.” [emphasis supplied]</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">15. In view of the above, we are of the opinion that there would be no purpose in sending the matter back for hearing on the objections, when it was not even raised on receipt of the notice in Form-III to extend the benefit of the judgment in the case of T.S.Senthil Kumar (supra). A lengthy hearing was given by this Court so that if right is established in the land in question, the notices issued in Form-III can be quashed. The dispute on boundaries of water tanks comes into picture only when one has right in the land and the dispute remains about the boundary of the user's land vis-a-vis the land of water tank. The issue aforesaid is not raised and available to the petitioners in the absence of title or any kind of right in the land in question. The boundaries are determined otherwise while taking the process under the provisions of the Act and the Rules and notice in Form-II is published in the notice board of the Village Panchayat and remains in the public domain. There is nothing on record to show that the petitioners even attempted to ascertain their position as per the Form-II notice available in public domain. It could not have been raised in the absence of an objection to the notice, rather, facts in that regard have been narrated only in the writ petitions, though disputed by learned Government Pleader stating that notices in Form-II were published and put on the notice board of the office of the Village Panchayat. However, the relevance of Form-</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">II remains more in those cases where the boundaries are disputed.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">16. Taking the overall facts into consideration, we find that opportunity of hearing has been given by this Court which otherwise has been mandated by this Court in the case of T.S.Senthil Kumar (supra) in the manner given therein and the judgment of the Larger Bench in the case of T.K.Shanmugam (supra). The petitioners failed to show any right in the land in question and even failed to submit objection to the notices in Form-III prior to approaching this Court.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">In our considered opinion, sending the matter back to give an opportunity of post-decisional hearing would be nothing but a futile exercise, especially when the matter pertains to encroachment on land of water tank.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">17. The water bodies play a significant role in maintaining the ecology and environment, besides being a source of drinking water.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Usage of land earmarked as waterbody for any other purpose would be detrimental to the society at large, as the State at times suffers drought and in contrast floods because water cannot accumulate on account of encroachments on the waterbodies/water tanks, therefore, flows and results in waste of water and at times results in floods.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><b>18. The Apex Court in the case of Jagpal Singh v. State of Punjab, (2011) 11 SCC 396 held as under:</b></div><div style="text-align: justify;"><b><br /></b></div><div style="text-align: justify;"><b>"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.</b></div><div style="text-align: justify;"><b><br /></b></div><div style="text-align: justify;"><b>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 is not used for the common benefit of the villagers but misappropriated by certain individuals. The time has come when these malpractices must stop." [emphasis supplied] </b></div><div style="text-align: justify;"><b><br /></b></div><div style="text-align: justify;"><b>The Apex Court has appreciated the ancestors who could foresee the value of water which is essentially required by everyone on the earth.</b></div><div style="text-align: justify;"><b><br /></b></div><div style="text-align: justify;"><b>The Apex Court in the case of Jagpal Singh (supra) had further observed that encroachments made by few greedy people on ponds contributed to water shortage in the country. Therefore, we need to give sanctity to the subject.</b></div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">19. Finding that learned senior counsel could not refer to any right of the petitioners in the land in question and otherwise an opportunity of hearing has been given by this Court, instead of sending the matter for post-decisional hearing, we hold that the petitioners have not made out a case warranting interference in the notices in Form-III impugned herein.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">20. Accordingly, the writ petitions fail and they are dismissed.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">There will be no order as to costs. Consequently, all connected miscellaneous petitions are closed. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(M.N.B., CJ.)<span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span> (N.M., J.) </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">07.07.2022 </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Index: Yes </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">To: 1.The Section Officer, Water Resources Department, </div><div style="text-align: justify;">Redhills Irrigation Division, Redhills, Chennai - 600 052.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">2.The Tahsildar, Madhavaram Taluk, Taluk Office, </div><div style="text-align: justify;">Madhavaram, Chennai-600 060.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">THE HON'BLE CHIEF JUSTICE AND N.MALA, J.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">W.P.No.13666 of 2022 etc. batch </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">07.07.2022</div></div>Claim for Commonshttp://www.blogger.com/profile/06082132405339033351noreply@blogger.com0tag:blogger.com,1999:blog-5162401328122846212.post-40933217301798597492022-08-31T15:52:00.003+05:302022-08-31T15:52:22.704+05:30NGT: Temple is not a public utility building [03.08.2022]<div style="text-align: center;">BEFORE THE NATIONAL GREEN TRIBUNAL </div><div style="text-align: center;">EASTERN ZONE BENCH,
KOLKATA </div><div style="text-align: center;"><br /></div><div style="text-align: center;">ORIGINAL APPLICATION No. 106/2021/EZ </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">IN THE MATTER OF: </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Sisir Kumar Panda, </div><div style="text-align: justify;">S/o Late Ram Prasad Panda, </div><div style="text-align: justify;">Aged about 50 years, </div><div style="text-align: justify;">Advocate by Profession, </div><div style="text-align: justify;">R/o Nehru Nagar, 7th Lane, </div><div style="text-align: justify;">Gosaninuagaon,
Berhampur, </div><div style="text-align: justify;">P.S.-Gosaninuagaon, District-Ganjam, </div><div style="text-align: justify;">Pin - 760003, Odisha,
....Applicant(s) </div><div style="text-align: justify;"><br /></div><div style="text-align: center;">Versus </div><div style="text-align: justify;"><br /></div><div><div style="text-align: justify;">1. Union of India,
Through Secretary,
Ministry of Environment, Forests and Climate Change,
Indira Paryavaran Bhavan, Jorbagh Road,
New Delhi - 110003, </div><div style="text-align: justify;">2. Chief Secretary to Govt. of Odisha,
State Secretariat, Bhubaneswar,
Pin - 751001, </div><div style="text-align: justify;">3. Principal Secretary to Government,
Water Resource Department,
Odisha State Secretariat, Bhubaneswar,
Pin - 751001, </div><div style="text-align: justify;">4. Principal Secretary to Government,
Home Department,
Odisha State Secretariat, Bhubaneswar,
Pin - 751001, </div><div style="text-align: justify;">5. Principal Secretary to Government,
1
Forest, Environment and Climate Change Department,
Odisha State Secretariat,
Kharavel Bhavan, Bhubaneswar,
Pin - 751001, </div><div style="text-align: justify;">6. Member Secretary,
Central Pollution Control Board,
Parivesh Bhavan, East Arjun Nagar,
New Delhi - 110032, </div><div style="text-align: justify;">7. Member Secretary,
Odisha State Pollution Control Board,
Paribesh Bhawan, A/118, Nilakantha Nagar,
Unit-8, Bhubaneswar,
Pin - 751012, </div><div style="text-align: justify;">8. Commissioner-cum-Secretary to Government,
Revenue and Disaster Management Department,
Government of Odisha,
State Secretariat, Bhubaneswar,
Pin - 751001, </div><div style="text-align: justify;">9. Commissioner-cum-Secretary to Government,
Urban and Housing Development Department,
Government of Odisha.
3rd Floor, KharveL Bhavan, West Wing Room No. 301,
State Secretariat, Bhubaneswar,
Pin - 751001, </div><div style="text-align: justify;">10. Revenue Divisional Commissioner, Southern Division,
At/Po: Berhampur, District-Ganjam,
Pin - 760004, </div><div style="text-align: justify;">11. Deputy Director General of Forests (C),
Regional Office, Eastern Zone (EZ),
Ministry of Environment, Forests and Climate Change,
A/3, Chandrasekharpur, Bhubaneswar,
Pin - 751023,
2 </div><div style="text-align: justify;">12. Regional Director,
Regional Directorate, Central Pollution Control Board,
Ministry of Environment, Forests and Climate Change,
South end Enclave Block-502, 5TH & 6TH Floor,
1582, Razidanga, Main Raod,
Kolkata - 700107, </div><div style="text-align: justify;">13. Tahasildar, Berhampur,
At/Po: Berhampur, District-Ganjam, Odisha,
Pin - 760004, </div><div style="text-align: justify;">14. Collector-cum-District Magistrate,
Ganjam Collectrate,
At/Po: Chatrapur, District-Ganjam, Odisha,
Pin - 761020, </div><div style="text-align: justify;">15. Sub-Collector, Berhampur,
At/Po: Berhampur, District-Ganjam,
Odisha - 760004, </div><div style="text-align: justify;">16. Commissioner, Berhampur Municipal Corporation,
At/Po: Berhampur, District-Ganjam,
Odisha - 760002, </div><div style="text-align: justify;">17. Secretary, Board of Revenue,
At/Po: Cuttack, Odisha,
Pin - 753002, </div><div style="text-align: right;"> ....Respondent(s) </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">COUNSEL FOR APPLICANT:
Mr. Biranchi Narayan Mahapatra, Advocate </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">COUNSEL FOR RESPONDENTS :
Mr. Soumitra Mukherjee, Advocate for R-1, </div></div><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><div><div style="text-align: justify;">Mr. Tarun Pattnaik, ASC for R-2 to 5, 8 to10,13-15 & 17, </div></div></blockquote></blockquote></blockquote></blockquote><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><div><div style="text-align: justify;">Mr. Ashok Prasad, Advocate for R-6 & 12, </div></div></blockquote></blockquote></blockquote></blockquote><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><div><div style="text-align: justify;">Ms. Papiya Banerjee Bihani, Advocate for R-7, </div></div></blockquote></blockquote></blockquote></blockquote><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><div><div style="text-align: justify;">Mr. Ramesh Sahoo, Advocate for R-16
3 </div></div></blockquote></blockquote></blockquote></blockquote></blockquote><div><div style="text-align: justify;"><br /></div><div style="text-align: center;">JUDGMENT</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">PRESENT:</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">HON'BLE MR. JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) </div><div style="text-align: justify;">HON'BLE MR. SAIBAL DASGUPTA (EXPERT MEMBER)</div><div style="text-align: justify;"> __________________________________________________________________ </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Reserved On:- July 26th, 2022 </div><div style="text-align: justify;">Pronounce On:- August 3rd, 2022 </div><div style="text-align: justify;">__________________________________________________________________</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">1. Whether the Judgment is allowed to be published on the net? Yes</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">2. Whether the Judgment is allowed to be published in the NGT Reporter? Yes </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Heard the learned Counsel for the parties and perused the documents on record.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">2. This Original Application has been filed by the Applicant for removal of illegal constructions/obstructions caused by the State Authorities as well as the private persons in the Ecological Sensitive Zone i.e. Agula Bandha (Common Water Bodies) and its embankments situated at Gosaninuagaon under Berhampur Tahasil of Ganjam District of Odisha.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">3. When we put a specific question to Mr. Biranchi Narayan Mahapatra, learned Counsel for the Applicant, to show us the Ministry of Environment, Forests and Climate Change Notification declaring Agula Bandha as an Ecological Sensitive Zone or as a Wetland, the learned counsel submitted that it has not been declared as an Ecological Sensitive Zone or a Wetland by the Government of India nor has it been declared as an Ecological Sensitive Zone or a Wetland by the State Government.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">4. It is stated that within the jurisdiction of the Berhampur Municipal Corporation, District Ganjam, Odisha, there are 42 ponds as per Revenue/Municipality records including Agula Bandha, the land details of which are mentioned in paragraph 4 of the original application but over a period of time a Police Station, Revenue Inspector Officer, Over Bridge, Rajib Abas Project, Maa Mangla Temple have been constructed over Agula Bandha water body and its boundary has been constructed over the water body in question.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">5. The learned Counsel for the Applicant has referred to the proceedings of the meeting held on 05.02.2021 in the office of the Berhampur Divisional Commissioner, Berhampur, and submitted that the proposal to convert the 'Jalasaya Kissam' of the land in question to 'Non-Jalasaya' was taken as late as on 12.02.2021 in spite of the fact that this Tribunal had earlier decided one matter pertaining to the water bodies under the Behrampur Municipal Corporation, being Original Application No. 82/2015/EZ; (Biranchi Narayan Mahapatra Vs. State of Odisha & Ors.) and vide its order dated 24.08.2017 passed therein had disposed of the said Original Application on the assurance given by the State Government in an affidavit filed therein that the State Government may be granted reasonable time for completion of the entire process of removal of encroachers from the ponds and its embankment and their rehabilitation within one year.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">6. The learned Counsel has also referred to Lok Adalat proceedings, (Annexure A-5 to the Original Application), and Award of the Lok Adalat dated 05.05.2016 in an application filed under Section 22 C(1) of the Legal Services Authorities Act, 1987 which pertains to the restoration of the status of Agula Bandha of Gosaninuagaon, Berhampur as 'Water Body'.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">7. Notices were issued to the Respondents and in response, counter-affidavits have been filed.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">8. The Applicant has filed a supplementary affidavit dated 12.11.2021 alleging therein that the constructions made in the premises of the 'Jalasaya' in question and its embankments are absolutely illegal and that for any such constructions, if permissible, prior Environment Impact Assessment is mandatory under the Environment Impact Assessment ('EIA' for short) Notification, 2006 issued by the Ministry of Environment, Forests and Climate Change, but the Respondents have recklessly permitted constructions to be made over the Plots in question which are water bodies without obtaining any Environmental Clearance.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">9. An affidavit dated 02.02.2022 has been filed on behalf of the Respondent Nos. 6 &12, Central Pollution Control Board, and all that has been stated therein is that the EIA Notification 2006 has been amended and it is now provided that building and construction activities which cover an area of more than 20,000 square meters of built-up area would fall under 'Category-B' and it is mandatory for the Project Proponent to obtain Environmental Clearance from the State Environment Impact Assessment Authority ('SEIAA' for short), in addition to other statutory provisions such as Consent to Establish and Consent to Operate from the State Pollution Control Board under the Water (Prevention and Control of Pollution) Act, 1974.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">10. The Respondent No.16, Berhampur Municipal Corporation, has filed its affidavit dated 28.02.2022, wherein it is stated that the pond in question, namely, Agula Bandha, is not situated over the entire land of 18.480 acres in Khata No. 1375 as alleged by the Applicant, rather the water body is situated on Plot No. 1509 area 6.860 acres and 0.086 acres of Plot No. 438. It is also stated that constructions which have been made are all public utility services undertaken in the greater interest of general public of the Bermapur town and that constructions have been made over land which has lost its characteristic as 'Jalasaya' (water body). It is also stated that the Kisam of Plot Nos. 1509/2918, 1509/2638, 1509/3123 have been changed to 'Patita' Kisam by the orders passed in Alienation Miscellaneous Case No. 662/1994, Alienation Miscellaneous Case No. 1/1991 and Alienation Miscellaneous Case No. 41/1998. It is also stated that Kisam of Plot No. 1509/4190 and 438/4189 have been changed to Kisam 'Gharabari' (Homestead) by virtue of the order passed in Alienation Miscellaneous Case No. 01/2020. In support of the averments, Mr. Ramesh Sahoo, learned Counsel for the Corporation has referred to the document filed as Annexure B/16 (at page no. 361) to the affidavit, which is the record of the Office of Tehsildar, Berhampur, Ganjam, dated 23.02.2022 which reads as under:-</div><div style="text-align: justify;"><br /></div></div><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><div><div style="text-align: justify;">"OFFICE OF THE TAHASILDAR, BERHAMPUR, GANJAM (ODISHA) Ph: (0680) 2283824 Email: tah_berhampur@yahoo.in Letter No. 899 Date 23.02.2022 To The Commissioner, Berhampur Municipal Corporation.</div></div><div><div style="text-align: justify;">Sub: Submission of detail field report, land status and structures related to NGT case No. 106/2021 Mouza- Gopabandhunagar of this tahasil.</div></div><div><div style="text-align: justify;">Ref: Your Good Office L. No. 2954 dated 21.02.2022. Sir, In inviting a kind reference to the letter on the subject cited above, I am to intimate that as per the report of the Rev. Inspector Gosaninugaon RAY Project, RI Office, Gosaninugaon Aganwadi Centre, Police Station Gosaninuagaon, Consumer forum court, Railway over bridge and other construction are exist over Plot No. 1509, 438, 437, 1510 in different khatas of Mouza Gopalbandhu Nagar. The detail field report, land status and structures related to NGT case No. 106/2021 Mouza Gopabandhunagar are as below:- Khata Plot No. Area Kisam RT Remarks
No.
1375 1509 6.986 Jalasaya Rakhita Agula Bandha
Khata Railway Over
Bridge
1510 0.719 Adi
437 0.148 Adi
438 0.086 Jalasaya
1373 1509/2918 1.000 Patita Anabadi RAY Project &
Khata Consumer
forum
1509/2638 2.480 Patita RAY Project
1509/3132 1.000 Patita RI Office,
Aganwadi
Centre
1372/3 1509/4190 0.040 Gharbari Gosaninuagaon
Police Station
438/4189 0.300 Gharbari
1372/1 1509/3030 0.120 Patita Khadya Jogan Bivag
(Odisha)</div></div><div><div style="text-align: justify;"><br /></div></div><div><div style="text-align: justify;">The demarcated report of RI Gosaninuagaon with Trace Map and RoR copy of the land scheduled are enclosed herewith for favour of your kind information and necessary action. Encl: As above Yours Faithfully,
Tahasildar, Berhampur,"</div></div></blockquote><div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">A perusal of the aforesaid document would show that a Jalasaya continues to exist over an area of 6.986 acres on Plot No. 1509 and over 0.086 acres on Plot No. 438.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">11. In his rejoinder affidavit dated 09.04.2022, the Applicant has alleged that the constructions, namely, Gosaninuagaon Police Station, Revenue Inspector Officer, Over Bridge, Rajib Abas Project, District Consumer Disputes and Redressal Commission, Railway Over Bridge, Khadya Jogan Bivag (Odisha), and Aganwadi Centre have been made over the Plot No. 1509, 438, 437 and 1510 of Khata No. 1375 of Gopabandhu Nagar Mouza of Berhampur Tehsil of Ganjam District, Odisha, as would be evident from the document dated 23.02.2022 (already extracted herein above). It is also stated that the State Government is constructing a morrum road with connectivity between Gosaninuagaon Police Station and District Consumer Disputes Redressal Commission by filling up the Agula Bandha (Jalasaya/Water Body).</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">12. The Respondent No.7, Odisha State Pollution Control Board, has also filed its affidavit dated 05.04.2022, bringing on record an Inspection Report of an inspection carried out on 31.01.2022 of Agula Bandha water body filed as Annexure R-7/1 (page no. 444 of the paper book). The Observations and Conclusion & Recommendations in the Inspection Report are reproduced herein below:-</div></div><div style="text-align: justify;"><br /></div><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><div><div style="text-align: justify;">"Following Observations are made during inspection:</div></div><div><div style="text-align: justify;">1. From the surroundings it was observed that waste water was discharged to the Agula Bandha near Revenue Inspector Office. Gosaninuagaon in West direction.</div></div><div><div style="text-align: justify;">2. One no. of storm water drain outlet was found to be connected to Agula Bandha near Gosaninuagaon Police Station in West direction.</div></div><div><div style="text-align: justify;">3. It was apprehended from the surroundings, during rainy season surface run off might be discharged into the water body as guard wall was not constructed around the Agula Bandha.</div></div><div><div style="text-align: justify;">4. There is no provision for removal of excess water during rainy season from the water body.</div></div><div><div style="text-align: justify;">5. Agula Bandha water body is filled with Algee, crabgrass and yellow nutsedge and other foreign particles on its surface.</div></div><div><div style="text-align: justify;">6. Solid waste including plastic bottles are found to be dumped near its embankment towards western part of the water body.</div></div><div><div style="text-align: justify;">7. Collected one no. of water sample from Agula Bandha on 20.02.2022 for analysis. The analysis result thus obtained indicates that water quality does ot conform to Class B (Outdoor Bath Organised) with respect to Dissolved Oxygen (DO). Biochemical Oxygen Demand (BOD) and Total Coliform (TC), MPN/100 ml as per the classification made by CPCB(ADSORBS/3/1978-79).</div></div><div><div style="text-align: justify;">8. Such non-conformance with respect to DO, BOD & TC may be due to discharge of wastewater into the water body.</div></div><div><div style="text-align: justify;"><br /></div></div><div><div style="text-align: justify;">Conclusion & Recommendations:</div></div><div><div style="text-align: justify;">In view of the above following recommendations are made:</div></div><div><div style="text-align: justify;"><br /></div></div><div><div style="text-align: justify;">1. Immediate steps shall be taken to stop discharge of waste water into Agula Bandha.</div></div><div><div style="text-align: justify;">2. Municipal Authority shall take necessary measures to remove the solid materials including plastic bottles, Algee, crabgrass and yellow nutsedge and other foreign particles from the surface of the water body.</div></div><div><div style="text-align: justify;">3. Necessary steps shall be taken by the Municipal Authority to stop/divert outlet of storm water drain into the water body.</div></div><div><div style="text-align: justify;">4. There shall be provision for removal of excess water during rainy season from the Agula Bandha.</div></div><div><div style="text-align: justify;">5. Awareness shall be created among the local people of the surrounding areas to prevent disposal of garbage into the water body."</div></div></blockquote><div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">13. The Collector & District Magistrate, Ganjam District, has also filed an affidavit dated 30.04.2022, stating therein that the common pond Agula Bandha does not exist over all the plots as alleged by the Applicant in his Original Application and, in fact, the common pond is now confined only to an area of 6.860 acres in Plot No. 1509, Khata No. 1375 and this water body has been preserved intact. The details of the other plots on Khata No. 1375 are mentioned in para 4 of the affidavit which reads as under:-</div><div style="text-align: justify;"><br /></div></div><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><div><div style="text-align: justify;">"4. Save what are matters of record, the averments made in paragraph 4 of the Original Application are disputed and denied. The averment of the Applicant that Agula Bandha is a common water body is disputed and denied. The common pond does not exist over all the plots as mentioned in this paragraph. The common pond is now confined to Plot Nos. 1509 over an area Ac. 6.860 dec. in Khata No. 1375. The water body has been kept intact. The area of the other plots in the Khata are (i) Plot No. 438 area 0.080, (ii), Plot Nos. 1504/1788 Area 0.005, (iii) Plot No. 1507/1791 Area 0.008, (iv) Plot No. 1506/1790 Area 0.006, (v) Plot No. 1505/1789 Area 0.005, (vi) Plot No. 1502/1786 Area 0.006, (vii) Plot No. DI-438 0.438 recorded as Jalasaya, (viii) Plot No. D1 437 area 0.148, (ix) Plot No. 1510 Area 0.719 recorded as Agula Bandha Adi. The aforesaid details of the Plots described with the corresponding area are evident from a bare perusal of the Record of Right. The deponent undertake to file translate copies of RoR at the time of hearing, if necessary.</div></div><div><div style="text-align: justify;">It is also pertinent to mention that the Respondent No.14 vide its order dated 27.03.1993, by exercising its power under Section 3A of OGLS (Amendment and Validation) Act, 1975, has sanctioned the de-reservation of the government lands in Khata No. 1375 Plot No. 1509 admeasuring an area of 3.600 acres out of 11.500 acres which had already lost its original characteristics of Jalasaya. Further, on 19.08.1999, the Respondent No.14 vide its order dated 19.08.1999, has sanctioned the de- reservation of the government lands in Khata No. 1375 Plot No. 1509 admeasuring an area of 1 acre out of 7.900 acres which had already lost its original characteristic of Jalasaya. The constructions such as Ray Project, consumer forum, Revenue Inspector Office, Anganwadi Centre, Gosaninuagaon Police Station, temple Khadya Jogan Bivaga have been carried over the plots after the said plots had already been de-reserved and classified as Patita."</div></div></blockquote><div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">14. It is also stated that the Respondent No.14, Collector-cum- District Magistrate, Ganjam District, in exercise of powers conferred in Section 3A of Orissa Government Land Settlement (OGLS) (Amendment and Validation) Act, 1975, vide his order dated 29.03.1993, has sanctioned the de-reservation of the Government Lands in Khata No. 1375, Plot No. 1509 admeasuring an area of 3.600 acres out of an area of 11.500 acres which had already lost its original characteristics of 'Jalasaya'. It is further stated that the Collector & District Magistrate, Ganjam, vide another order dated 19.08.1999, has sanctioned de-reservation of Government Lands in Khata nO. 1375, Plot No. 1509 admeasuring an area of 1 acre out of 7.900 acres which had already lost its original characteristics of 'Jalasaya'. It is also stated that the constructions such as - Ray Project, Consumer Forum, Revenue Inspector Office, Anganwadi Centre, Gosaninuagaon Police Station, Temple, Khadya Jogan Bivag, have been made over these plots after the same had been de- reserved and classified as 'Patita'. The Record of Rights have also been filed as Annexure-B/14 (colly) to the affidavit. The details of constructions which have been made in Khata No. 1373, Plot No. 1509/2918, Plot No. 1509/2638, Plot No. 1509/3123, Khata No. 1372/3, Plot No. 1509/4190 & Plot No. 438/4189, Khata no. 1372, Plot No. 1509/3030 and Plot No. 1509/2918 are given in para 5 of the affidavit which reads as under:-</div></div><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><div><div style="text-align: justify;"><br /></div></div><div><div style="text-align: justify;">"5 .......xxxx.......xxxx........xxxx........xxxxx.......xxxx........</div></div><div><div style="text-align: justify;">a. Consumer forum building which is part of Ray project, has been constructed over Khata No. 1373, Plot No. 1509/2918 admeasuring over an area Ac. 1.000 and the nature of the said land is Kissam Patita. b. Plot No. 1509/2638 admeasuring an area of Ac. 2.480 decimals and the nature of the land is Kissam Patita. The said area has been reserved for Ray Project. c. Revenue Inspector Office and Anganwadi Centre have been constructed over Plot No. 1509/3123 admeasuring an area Ac. 1.000 and the nature of the land is Kissam Patita.</div></div><div><div style="text-align: justify;">d. Gosaninuagaon Police Station, Berhampur has been constructed over Khata No. 1372/3, Plot No. 1509/4190 having an area of Ac. 040 decimals and Plot No. 438/4189 having an area of Ac. 0.300 decimals. The nature of the land is Kissam Gharbari. e. In Khata No. 1372/1 Plot No. 1509/3030 area Ac. 0.120 Kissam Patita for Khadya Jogan Bivag (Odisha) Office and the Railway over bridge is constructed over the Plot No. 1510 and 437 Kissam Ad of the Agula Bandha.</div></div><div><div style="text-align: justify;">f. Maa Mangala Temple constructed over the Plot No. 1509/2918 over an area of Ac. 0.012 and the nature of the land is Kissam Patita."</div></div></blockquote><div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">15. It is also stated that the existing water body in Agula Bandha is confined to Plot No. 1509 admeasuring an area of 6.860 acres and all necessary steps have been taken to protect the existing water body and steps have also been taken by the Tehsildar to remove encroachments in and around the water body in question. It is also stated that the 'ADI' is not a water body but is a embankment of pond situated on the periphery of the pond. It is also stated that in a meeting held on 05.02.2021 under the Chairmanship of the Revenue Divisional Commissioner (R.D.C.) (Southern Division), Berhampur, necessary permission has been accorded for changing the Kisam of land from 'Jalasaya-I' to 'Patita' and the Collector, Ganjam, in pursuance of the decision taken by the Committee, has vide his order dated 01.03.2021 effected the transfer of the land measuring 0.300 acre in Plot No. 438 and 0.040 in Plot No. 1509 of Khata No. 1375 in favour of Home Department for construction of Gosaninuagaon Police Station since the land had lost its characteristics of 'Jalasaya'.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">It is reiterated that this area has not affected the remaining water body of Agula Bandha. It is also stated that the construction of Gosaninuagaon Police Station is for public purpose and covers the area from Ward No. 24 to 28 of the BeMC, Berhampur and Mouza New Khajuria and Old Khajuria and other nearby establishment areas. It is also reiterated that only those lands have been de-reserved from 'Jalasaya' to 'Patita' which have lost their characteristic as 'Jalasaya'.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">16. Mr. Biranchi Narayan Mahapatra, learned Counsel for the Applicant has placed reliance upon certain judgments in support of his contention that a water body cannot be allowed to be converted into any other kind of land other than the water body and encroachments thereon also cannot be permitted.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">17. Reference has been made to the judgment of the Tribunal dated 24.08.2017 passed in Original Application No. 82/2015/EZ; (Biranchi Narayan Mahapatra Vs. State of Odisha & Ors.), which was in respect of all water bodies including Agula Bandha and a direction was issued by the Tribunal to complete the entire process of eviction and comply with the orders of the Tribunal within six months and also to remove all encroachments from the ponds and its embankments and their rehabilitation within one year. There can be no quarrel with the directions given by the Tribunal in Original Application No. 85/2015/EZ.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">18. The stand of the State Respondents is that an area of 6.860 acres over Plot No. 1509 in Khata No.1375 is still preserved as 'Water Body' and steps have been taken by the Tehsildar to remove encroachments from the said water body and its embankments.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">19. Reference has also been made to the judgment of the High Court of Odisha passed in Writ Petition (C) No. 8797 of 2004; (Tapan Kumar Das Vs. Commissioner, Cuttack Municipal Corporation & Ors.) along with other connected cases decided on 11.10.2012. The High Court gave certain directions to the effect that Revenue Divisional Commissioner (R.D.C.) (C.D.) Cuttack, shall form a Committee and this Committee shall deal with the protection, preservation and conservation of water bodies in the city of Cuttack and take decision accordingly. It was also provided that applications for change of classification/kisam of land from 'Jalasaya' to 'Homestead' shall be processed through the Tehsildar, Sadar, Cuttack, to the Collector for appropriate orders and the decision of the Collector shall then be placed before the Committee for approval and if the Committee is of the opinion that the lands which have lost their characteristic as 'Jalasaya' and those which are actually not 'Jalasaya' or 'Swampy' lands but have been recorded as 'Jalasaya', change of classification of such lands may be allowed. The Division Bench of the High Court further directed that it will be open for the State Government to adopt the directions given in respect of Cuttack city for other cities in the State. Paras 14 and 15 of the High Court judgment are extracted herein below:-</div></div><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><div><div style="text-align: justify;">"14. Considering the facts and circumstances of the case, for preservation and conservation of tanks/water bodies in Cuttack City, and to deal with such tanks/water bodies, we direct as follows:</div></div><div><div style="text-align: justify;"><br /></div></div><div><div style="text-align: justify;">(1) The State Govt. shall act upon the report dated 31.08.2007 submitted by the R.D.C (C.D.) Cuttack, and the affidavit dated 18.05.2020 filed by the Principal Secretary to Govt. H&U.D. Department and shall ensure that the steps indicated therein are taken within a period of two years from today.</div></div><div><div style="text-align: justify;"><br /></div></div><div><div style="text-align: justify;">(2) The R.D.C. (C.D.) Cuttack, under his chairmanship shall form a Committee not exceeding seven members including the Vice Chairman, C.D.A., Municipal Commissioner, CMC, Cuttack, and an Environmentalist of the State Pollution Control Board, Odisha. Needless to say, the other members of the Committee shall be nominated by the R.D.C. The Committee shall deal with the protection, preservation and conservation of water- bodies in the city and shall take decisions accordingly. (3) The applications for change of classification/kissam of lands from Jalasaya to homestead shall be processed through the Tahasildar, Sadar, Cuttack, to the Collector for appropriate orders. The decision of the Collector shall be placed before the Committee as constituted above for approval. Only after approval of the Committee, change of classification/kissam of the land shall be allowed. The Committee shall record the reasons for allowing change of classification/kissam of such lands. However, if the Committee is of the opinion that the lands, which have lost their character as Jalasaya, and those, which are actually not Jalasayas or swampy lands but have been recorded as Jalasaya, change of classification of such lands may be allowed. This shall be effective from the date of the judgment. (4) The Committee shall also make enquiry, if it is so necessary, to find out whether classification of the lands recorded as Jalasaya has been changed by orders of the Tahasildar during operation of the order of status quo passed by this Court on 08.04.2005 in O.J.C. No. 6721/1999. In case it is found that the classification has been changed during continuance of the order of status quo, the same shall be treated as non est in the eye of law.</div></div><div><div style="text-align: justify;"><br /></div></div><div><div style="text-align: justify;">15. For the aforesaid purpose, Cuttack city shall be construed to be the old Cuttack City comprising the areas shown in the satellite maps of the ORSAC of 1990 and 2006, which have been annexed to the Report of the R.D.C. dated 31.08.2007. It will be open to the State Govt. to adopt the directions given in respect of Cuttack City in the foregoing paragraph for other cities in the State."</div></div></blockquote><div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">20. Learned Counsel for the Applicant has also referred to the judgment of the Hon'ble Supreme Court passed in Civil Appeal No. 4787 of 2001; (Hinch Lal Tiwari Vs. Kamala Devi & Ors.), (2001) 6 SCC 496, decided on 25.07.2001 wherein the Hon'ble Supreme Court has observed as under:-</div><div style="text-align: justify;"><br /></div></div><blockquote style="border: none; margin: 0 0 0 40px; padding: 0px;"><div><div style="text-align: justify;">"It is important to notice that the material resources of the community like forests, tanks, ponds, hillock, mountain etc. are nature's bounty. They maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality life which is the essence of the guaranteed right under Article 21 of the Constitution. The Government, including the Revenue Authorities i.e. Respondents 11 to 13, having noticed that a pond is failing in disuse, should have bestowed their attention to develop the same which would, on one hand, have prevented ecological disaster and on the other provided better environment for the benefit of the public at large. Such vigil is the best protection against knavish attempts to seek allotment in non- abadi sites. For the aforementioned reasons, we set aside the order of the High Court, restore the order of the Additional Collector dated 25-2-1999 confirmed by the Commissioner on 12-3-1999. Consequently, Respondents 1 to 10 shall vacate the land, which was allotted to them, within six months from today. They will, however, be permitted to take away the material of the houses which they have constructed on the said land. If Respondents 1 to 10 do not vacate the land within the said period the official respondents i.e. Respondents 11 to 13 shall demolish the construction and get possession of the said land in accordance with law. The State including Respondents 11 to 13 shall restore the pond, develop and maintain the same as a recreational spot which will undoubtedly be in the interest of the villagers. Further it will also help in maintaining ecological balance and protecting the environment in regard to which this Court has repeatedly expressed its concern. Such measures must begin at the grass-root level if they were to become the nation's pride."</div></div></blockquote><div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">21. Reference has also been made to the judgment of the Hon'ble Supreme Court passed in Civil Appeal No. 5109 of 2019; (Jitendra Singh Vs. Ministry of Environment & Ors.), (2019) 20 SCC 581, decided on 25.11.2019. Para 23 of the judgment reads as under:-</div><div style="text-align: justify;"><br /></div></div><blockquote style="border: none; margin: 0 0 0 40px; padding: 0px;"><div><div style="text-align: justify;">"23. For the reasons stated above, we allow the appeal and set aside the impugned order passed by the NGT. The allotment of all water bodes (both ponds and canals), including Khasra Nos.552 and 490 to Respondent No.6, or any other similar third party in village Saini, tehsil Dadri, district Gautam Budh Nagar is held to be illegal and the same is hereby quashed. Since this Court has on 15.07.2019 already directed the parties to maintain status quo, Respondent Nos.1 to 5 shall restore, maintain and protect the subject- water bodies in village Saini. Respondents are further directed to remove all obstructions from the catchment area through which natural water accumulates in the village ponds, all within a period of three months."</div></div></blockquote><div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">22. Reference has also been made to (1996) 2 SCC 572; (Delhi Water Supply & Sewage Disposal Undertaking & Anr. Vs. State of Haryana), decided on 29.02.1996, wherein in para 10 of the judgment the Hon'ble Supreme Court has held as under:-</div><div style="text-align: justify;"><br /></div></div><blockquote style="border: none; margin: 0 0 0 40px; padding: 0px;"><div><div style="text-align: justify;">"10. So far as water supply from river Jamuna to Delhi is concerned, we order and direct that Delhi shall continue to get as much water for domestic use from Haryana through river Jamuna which can be consumed and filled in the two water reservoirs and treatment plants at Wazirabad and Hyderpur. Both the Wazirabad and Hyderpur reservoirs shall remain full to their capacity from the water supplied by Haryana through river Jamuna. We direct the State of Haryana through all its officers who are party to these proceedings and who have filed affidavits before us not to obstruct the supply of water to Delhi as directed by us at any time. This order of ours is not dependent on the MOU mentioned above or any other proceedings which may be initiated under any other law between the parties."</div></div></blockquote><div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">In this case, the Hon'ble Supreme Court has directed that so far as water supply from river Jamuna to Delhi is concerned, Delhi shall continue to get as much water for domestic use from Haryana through river Jamuna which can be consumed and filled in the two water reservoirs and treatment plants at Wazirabad and Hyderpur. In our opinion, the aforesaid judgment has no application to the facts of the present case.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">23. The learned Counsel for the Applicant has next referred to (2011) 11 SCC 396; (Jagpal Singh & Ors. Vs. State of Punjab & Ors.), decided on 28.01.2011 which has been considered by the Hon'ble Supreme Court in the case of Jitendra Singh (Supra).</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">24. Reference has also been made to the judgment of the National Green Tribunal, Principal Bench, dated 18.11.2020 passed in Original Application No. 325 of 2015; (Lt. Col. Sarvadaman Singh Oberoi Vs. Union of India & Ors.), wherein the Tribunal issued the following directions in para 22 of the judgment which read as under:-</div><div style="text-align: justify;"><br /></div></div><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><div><div style="text-align: justify;">"Directions</div></div><div><div style="text-align: justify;">22. Accordingly, we dispose of this application with following directions:</div></div><div><div style="text-align: justify;">(i) All States/UTs may forthwith designate a nodal agency for restoration of water bodies, wherever no such agency has so far been so designated.</div></div><div><div style="text-align: justify;">(ii) Under oversight of the Chief Secretaries to the States/UTs, the designated nodal agency may a. Hold its meeting not later than 31.01.2021 to take stock of the situation and plan further steps, including directions to District authorities for further course of action upto Panchayat levels and to evolve further monitor mechanism as well as Grievance Redressal Mechanism (GRM).</div></div><div><div style="text-align: justify;">b. Submit periodical reports to the CPCB/Secretary Jal Shakti, Government of India. First such report may be furnished by 28.02.2021.</div></div><div><div style="text-align: justify;">(iii) The CMC for monitoring remediation of 351 polluted river stretches, headed by the Secretary, MoJS may monitor the steps for restoration of water bodies by all the States periodically, at least thrice in a year. First such monitoring may take place by 31.03.2021.</div></div><div><div style="text-align: justify;">(iv) The CMC may give its action reports to this Tribunal in OA 673/2018 and first such report may be furnished preferably by 30.04.2021 by e-mail."</div></div></blockquote><div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">In this case, the Tribunal directed all States/UTs to designate a nodal agency for restoration of water bodies, wherever no such agency has so far been so designated and monitor the steps for restoration of water bodies by all states periodically.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">However, further directions were also issued by the Tribunal in M.A. No. 26 of 2019 filed in Original Application No. 325 of 2015; (Lt. Col. Sarvadaman Singh Oberoi Vs. Union of India).</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">25. The next case referred by the learned Counsel for the Applicant is the judgment of the Hon'ble Supreme Court passed in Civil Appeal No. 812 of 2002; (Vijay Sayal & Anr. Vs. State of Punjab & Ors.), decided on 22.05.2003. This judgment relates to selection/non-selection of candidates to the posts of Assistant District Transport Officer, advertised by the Punjab Subordinate Selection Board and has absolutely no application to the controversy involved in the present case.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">26. Learned Counsel for the Applicant has next referred to (1995) 1 SCC 421; (Chandra Shashi Vs. Anil Kumar Verma) decided on 14.11.1994, which again has no application to the facts of the present case.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">27. Likewise, the judgment of the Hon'ble Supreme Court in the case of Writ Petition (Crl.) No. 15 of 1994; (Dhananjay Sharma Vs. State of Haryana & Ors.), decided on 02.05.1995. This matter relates to a civil dispute in which case under Section 406/420 IPC was also got registered. This judgment also has absolutely no application to the facts of the present case.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">28. Learned Counsel has next referred to the judgment of the Hon'ble Supreme Court in Jagpal Singh (Supra), which has already been considered by the Hon'ble Supreme Court in the case of Jitendra Singh (Supra).</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">29. The Respondents, on the other hand, have not disputed that a large part of the water body existing on Plot No. 1509, Khata No. 1375, which facts have already been noted by us herein above, but it is stated that those plots were converted by the State Government under Section 3A of the Orissa Government Land Settlement (Amendment and Validation) Act, 1975 as those lands had already been degraded and lost its characteristic of 'Jalasayas' and, therefore, constructions such as - Ray Project, Consumer Forum, Revenue Inspector Office, Anganwadi Centre, Gosaninuagaon Police Station, Temple, Khadya Jogan Bivag, have been made over the plots after de-reservation and classification of the same as 'Patita'. It is also stated that at present only 6.860 acres of Plot No. 1509, Khata No. 1375 is existing as a water body in Agula Bandha which has been preserved and encroachments have been removed therefrom.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">30. Learned Counsel for the Respondents have further relied upon the judgment of the Division Bench of the Hon'ble High Court of Odisha in the case of Tapan Kumar Das (Supra) and it is submitted that the High Court had directed a Committee to be constituted under the Chairmanship of Revenue Divisional Commissioner (C.D.) Cuttack, to deal with the issues relating to protection, preservation and conservation of water bodies in the city of Cuttack and take decisions accordingly and it was also directed that applications for change of classification/kisam of land from 'Jalasaya' to 'Homestead' shall be processed through the Tehsildar, Sadar, Cuttack to the Collector for appropriate orders. The decision of the Collector shall be placed before the Committee and if the Committee is of the opinion that the lands which have lost their characteristic as 'Jalasaya' and are not 'Jalasaya' or swampy lands but have been recorded as Jalasaya, change of classification/kisam of such lands may be allowed. The High Court further directed that it will be open to the State Government to adopt the directions given in respect of Cuttack city for other cities in the State.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><b>31. On behalf of the Respondents reliance has also been placed on the observations made in para 17 of the judgment of the Hon'ble Supreme Court in the case of Jitendra Singh (Supra). Para 17 of the judgment reads as under:-</b></div><div style="text-align: justify;"><b><br /></b></div></div><blockquote style="border: none; margin: 0 0 0 40px; padding: 0px;"><div><div style="text-align: justify;"><b>"17. It is uncontroverted, in the present case, that the Government Order dated 03.06.2016 was a consequence of the afore-cited judgment in Jagpal Singh. Curiously, however, Clause 5 of the Government Order carves an exception of 'huge projects/works' (albeit in extraordinary circumstances) to Jagpal Singh's strict principle of non- alienation of common water bodies. It is clear that such ground of exception does not fall under the limited class of grants 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". Such industrial activities without any rationale classification, unlike the narrow class exempted, do not serve a social public purpose or benefit the local people, and thus will be hit by the inalienability bar."</b></div></div></blockquote><div><div style="text-align: justify;"><b><br /></b></div><div style="text-align: justify;"><b>32. Reliance has also been placed on the observations made in para 22 of the judgment of the Hon'ble Supreme Court in the case of Jagpal Singh (Supra) wherein the Hon'ble Supreme Court has observed that regularization of illegal possession should only be permitted in exceptional cases, for example 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. Para 22 of the judgment reads as under:-</b></div><div style="text-align: justify;"><b><br /></b></div></div><blockquote style="border: none; margin: 0 0 0 40px; padding: 0px;"><div><div style="text-align: justify;"><b>"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."</b></div></div></blockquote><div><div style="text-align: justify;"><b><br /></b></div><div style="text-align: justify;"><b>33. We have considered the observations of the Hon'ble Supreme Court in Jagpal Singh (Supra) read with the directions given by the Division Bench of the High Court of Odisha in Tapan Kumar Das (Supra), which leave no doubt that where the Jalasaya has been degraded it can be de-classified as 'Jalasaya' and further that if at all there is illegal possession regularization of such illegal possession should only be permitted in those cases as mentioned in para 22 of the Jagpal Singh (Supra) including public utility on the land.</b></div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">34. There is no dispute in the present case that constructions have been made by the Government itself after de-classifying the portions of Agula Bandha which they claim have lost its characteristic as 'Jalasaya'. Apart from 6.860 acres of land which is stated to be still existing as Agula Bandha water body, it has not been disclosed by the Respondents as to how much of the rest of the water body had lost its characteristics as a 'Jalasaya' and become degraded.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">35. We cannot lose sight of the fact that degradation of water bodies cannot be allowed by the State by turning a Nelson's eye to deliberate encroachments upon the water body by unscrupulous persons and thereafter the Government taking a stand that the Jalasaya in question has lost its character as such.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">36. We cannot also lose sight of the fact that water is a basic source of all life on earth. If there is no water, all life forms on earth would become extinct. Water bodies even natural springs, serve the purpose of collecting rainwater and runoff water and thereby help to recharge the groundwater through natural aquifers. Water bodies also help to sustain aquamarine life. Water bodies serve to provide drinking and bathing water to humans as well as animals and, therefore, water bodies cannot be allowed to be degraded or to lose their character as 'Jalasaya' and it is the bounden duty of the State to protect the water bodies thereby ensuring protection of the right to life as enshrined in Article 21 of the Constitution of India.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><b>37. At the same time, in the facts of the present case, we cannot ignore the fact that large parts of Agula Bandha water body have been completely destroyed leaving only 6.860 acres which is still a water body. Government buildings have been constructed on the degraded parts of the water body and while the Government may take the plea that these buildings are public utility buildings and, therefore, even if such buildings are illegal, the same may be regularized in terms of para 22 of the judgment of the Hon'ble Supreme Court in the case of Jagpal Singh (Supra) but we also find that a Maa Mangala Temple has been constructed over Plot No. 1509/2918 over an area of 0.012 acres. The construction of a temple, by whichever name called, is not a public utility building and cannot be permitted on a specious plea that the Jalasaya has lost its characteristics as 'Jalasaya'.</b></div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">38. In Original Application 22/2022/EZ, the National Green Tribunal, Principal Bench had directed demolition of Sri Sri Panchamukhi Hanuman Temple Trust, Ratilo, which was constructed within 35 meters from the embankments of River Mahanadi vide its order dated 15.12.2020. Aggrieved party approached the Hon'ble Supreme Court in Civil Appeal Nos. 4598- 4599 of 2021 and the said Civil Appeals were also dismissed by the Hon'ble Supreme Court by its order dated 10.08.2021.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">39. In the present case also there can be absolutely no justification for construction of Maa Mangala Temple over Jalasaya land on the plea that the said area of land has lost its characteristics as 'Jalasaya'. We, therefore, direct the Respondent No.14, Collector-cum-District Magistrate, Ganjam District, to remove the said temple from Plot No. 1509/2918 over an area 0.012 acres within one month and restore the said land as 'Jalasaya' and file affidavit of compliance by 08.09.2022.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">40. The Applicant in his Original Application has given the total land area of Plot No. 1509, Khata No. 1375 to be 18.480 acres and the various plots recorded in the Record of Rights particulars of which are as under:- Plot No. 438, measuring an area of 0.860 decimal (recorded as Jasalaya-I), Plot No. 1509 (6.8600 decimal recorded as Jasalaya-I), Plot No. 1504/1788 (0.050 decimal recorded as Jalasaya-I), Plot No. 1507/1791 (0.080 decimal recorded as Jalasaya-I), Plot No. 1506/1790 (0.060 decimal recorded as Jalasaya-I), Plot No. 1505/1789 (0.050 decimal recorded as Jalasaya-I), Plot No. 1502/1786 (0.060 decimal recorded as Jalasaya-I), D1-438 (0.3860 decimal recorded as Jalasaya-I), D1-437 (0.1480 decimal recorded as AGULA BANDHA ADI), 1510 (0.7190 decimal recorded as AGULA BANDHA ADI), highly required for the preservation/protection of the common pond/common water body.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">41. According to the State Respondents an area of 6.860 acres is still maintained as common pond/common water body in Plot No. 1509, Khata No. 1375. According to the State Respondents, the area of the Jalasaya which has lost its characteristics as such is measuring about 11.500 acres of which 3.600 acres was de- reserved in Khata No. 1375, Plot No. 1509 vide Collector's order dated 27.031993 and vide another order dated 19.08.1999, area admeasuring 1 acre out of the 7.900 acres of Khata no. 1375, Plot No. 1509 has been de-reserved in exercise of powers conferred in Section 3A of the Orissa Government Land Settlement (Amendment and Validation) Act, 1975. This means that out of a total area of about 18.480 acres of Jalasaya, 11.500 acres of area has lost its characteristic as such and 6.860 acres is still maintained as a common pond/common water body at Agula Bandha. This area of 11.500 acres of land which has been allowed by the State Government to degrade and lose its character as 'Jalasaya' needs to be restored by the Government. Since Government buildings have been constructed on this area of land, we direct the State Respondents to demarcate land of an equivalent size of 11.500 acres including 0.012 acres of the land which will become available after demolition of Maa Mangala Temple, as far as possible close to the Agula Bandha water body and if not possible, in some other area nearby and re-create a water body of the same size and depth as Agula Bandha.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">42. We may remind the State Respondents that this is not an impossible task considering that the Sukhna Lake in Chandigarh, having an area of 3 square kilometers with an overall depth of 8 feet (2.4 meters) maximum depth 16 feet (4.9 meters) was created as an artificial water body and, therefore, what can be done by the Government of Punjab to create a water body for its citizens, can also be replicated by the State of Odisha in the District of Ganjam, Odisha over the remaining area of 11.500 acres including 0.012 acres of the land which will become available after demolition of Maa Mangala Temple.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">43. There are also umpteen examples of artificial water bodies created by various State Governments to help in providing drinking water as well as water for agriculture for the rural poor. The above example of Sukhna Lake in Chandigarh is just an illustration.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">44. A direction is also issued to the Chief Secretary, Govt. of Odisha, in this regard to ensure compliance of our directions given herein above. The State Respondents shall file a Status Report within three months i.e., by 03.11.2022.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">45. With the above directions, the Original Application No. 106/2021/EZ is disposed of.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">46. There shall be no order as to costs.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">....................................... </div><div style="text-align: justify;">B. AMIT STHALEKAR, JM </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">....................................</div><div style="text-align: justify;">SAIBAL DASGUPTA, EM </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Kolkata</div><div style="text-align: justify;">August 3rd, 2022 </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Original Application No.106/2021/EZ AK</div></div>Claim for Commonshttp://www.blogger.com/profile/06082132405339033351noreply@blogger.com0tag:blogger.com,1999:blog-5162401328122846212.post-55348029675200885252022-08-31T11:19:00.000+05:302022-08-31T11:19:21.063+05:30Delhi HC: Tehbazari right does not entitle occupant to raise pucca construction & usurp Govt land [22.08.2022]<div style="text-align: center;">IN THE HIGH COURT OF DELHI AT NEW DELHI </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Reserved on: 08.08.2022 </div><div style="text-align: justify;">Pronounced on: 22.08.2022 </div><div style="text-align: center;">W.P.(C) 8206/2016 </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">VED PRAKASH MANCHANDA <span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span>..... Petitioner </div><div style="text-align: justify;">Through: Mr. N. Tripathi and Divyanshu
Priyam, Advocates </div><div style="text-align: justify;"><br /></div><div style="text-align: center;">versus </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">DELHI URBAN SHELTER IMPROVEMENT
BOARD & ORS. <span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span>..... Respondents </div><div style="text-align: justify;">Through: Mr. Parvinder Chauhan, Advocate </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">CORAM:
HON'BLE MR. JUSTICE GAURANG KANTH </div><div style="text-align: justify;"><br /></div><div style="text-align: center;">JUDGMENT</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">GAURANG KANTH, J.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">1. The Petitioner filed the present Writ Petition, inter alia, seeking the following reliefs:</div><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><div style="text-align: justify;">"(i) to pass appropriate Writ, Order, Direction, in the nature of Mandamus, commanding upon the respondents to regularize the long and continuous occupation of the petitioner for the last more than 25, by executing a Lease Deed / any other requisite document of title, in favour of the petitioner in respect of the 'suit premises' i.e. C - 14, Shiv Shankar Market, Madangir, New Delhi.</div><div style="text-align: justify;">(ii) to quash the order dt. 24.08.2016 as passed by the Hon'ble Lieutenant Governor of Delhi, being contrary to law.</div><div style="text-align: justify;">(iii) To quash the order dt. 29.11.2011, which is contrary to the principles of promissory estoppel and issue directions to the respondents, not to disturb the petitioner from use and enjoyment of the property bearing no. C -14, Shiv Shankar Market, Madangir, New Delhi in the Interest of Justice;</div><div style="text-align: justify;">(iv) to pass such further order(s) / direction(s), as this Hon'ble Court may deem fit, proper and appropriate in the circumstances of this case."</div></blockquote><div style="text-align: justify;"><br /></div><div style="text-align: justify;">2. It is the case of the Petitioner that he has been in use and occupation of premises No. C-14, Shiv Shankar Market, Madangir, New Delhi ("Property in dispute"), ever since 1990-91. It is the case of the Petitioner that since then he was enjoying this site as a Tehbazari site. The Respondents used to collect License Fee / Damages / Penalty from the Petitioner from time to time. Electricity connection was sanctioned in favour of the Petitioner based on the 'No Objection Certificate' issued by the Respondents.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">3. The Petitioner received a Regularization Notice dated 05.08.2002 by the then Slum & J. J. Department, whereby the Petitioner was called upon to pay the regularization charges @ Rs. 6,39,418/-, as per L.&D.O. rates of 01.04.1999, within a period of 30 days. The Petitioner deposited a sum of Rs. 6,39,418/- vide receipt no. 338976, dated 07.08.2002 towards the regularisation charges. However, despite the payment and completion of all other formalities, no Lease Deed was executed by the Respondents.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">4. Aggrieved by the inaction of the Respondents, the Petitioner vide representation dated Nil approached the Secretary, Public Grievances Commission, Government of N.C.T. of Delhi seeking a direction to direct the Slum & J. J. Department of MCD to execute the sale deed in favour of the petitioner pertaining to Shop No. C-14, Shiv Shankar Market, Delhi. The Respondents vide letter dated 27.12.2002 informed the Petitioner that it has been decided that the Department will charge Rs. 44,472/- per square meter from the petitioner as cost of land equal to average auction price including the damage charges for 10 years, the property in question will be sold to the Petitioner as per Rules and Regulations. Later, vide letter dated 16.11.2004, the competent authority asked the Petitioner for completion of formalities so that the Lease can be executed subject to payment of auction rates prevalent at present and after approval of the Hon'ble Lieutenant Governor, Delhi. The Petitioner completed all the formalities and deposited the amount as demanded by the Respondents, however, no Lease Deed was executed in his favour.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">5. The Petitioner filed W.P.(C) No. 1102/2010 which was disposed of by this Hon'ble Court vide order dated 14.03.2011 with a direction to the Respondent/DUSIB to treat the writ petition as representation of the petitioner and to take a decision either to execute the sale deed or to pass a speaking order of rejection. Hence in compliance of the order of this Court, the Respondent/DUSIB passed a speaking order dated 29.11.2011 rejecting the claim of the Petitioner and held that the petitioner herein has tresspassed Government land and is required to be evicted from the said Land. Subsequently, the premises of the Petitioner was sealed on 23.02.2016 pursuant to an order dated 01.02.2016 passed by the Respondent/DUSIB. The Petitioner preferred W. P. (C) No. 2007/2016 challenging the said action of the Respondents, however, the said Writ Petition was withdrawn with liberty to file appropriate legal proceedings. The Petitioner preferred an appeal against the order dated 01.02.2016 passed by Director (Vig.), DUSIB before the Hon'ble Lieutenant Governor of Delhi. Later on vide order dated 24.08.2016, the said Appeal No. 38/2016 preferred by the petitioner was dismissed by the Hon'ble Lieutenant Governor, Delhi. By way of the present writ petition, the Petitioner has challenged the order dated 24.08.2016 passed by Hon'ble Lieutenant Governor of Delhi.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">6. Respondent Nos. 1 & 2 has filed the Counter Affidavit in the present proceedings raising preliminary objection regarding the maintainability of the Writ Petition. It is the stand of Respondent Nos.1 & 2 that the Petitioner is an encroacher on the public land and the Petitioner has no right to retain the possession of the land in question. The property in occupation of the Petitioner was earmarked and earlier was being used as community lavatory/toilet. However, the same was encroached upon by the Petitioner whereupon a multi- storied building has been constructed by him.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">7. Mr. N. Tripathy, learned counsel for the petitioner contended that the impugned order dated 24.08.2016 passed by Hon'ble Lieutenant Governor of Delhi is perverse and has been passed without taking into consideration the fact that the Respondent/DUSIB vide demand notice dated 05.08.2002 has asked the Petitioner to deposit an amount of Rs.6,39,418/- for regularization which has been duly deposited by the Petitioner. Learned counsel further contended that as per Principles of Promissory estopple, the respondents are bound to execute the lease deed in respect of the suit property when the appellant had acted and complied with the directions issued vide letter dated 05.08.2002.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Learned counsel further relied on the Tehbazari licence issued in his favour contending that he is not a trespasser. Learned counsel further contended that the impugned order is violative of Article 14 of the Constitution of India, and discriminatory, as the persons similarly placed to the petitioner, have been granted a relief, akin to that as claimed by the petitioner herein.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">8. Mr. Parvinder Chauhan, learned counsel for the respondent/DUSIB contended that the Petitioner is claiming his right over the property in question based on the demand notice dated 05.08.2002 raised by Slum & J. J. Department, Municipal Corporation of Delhi. The said demand notice was issued in pursuance of the Resolution No. 372 dated 15.10.2001 passed by the House of the Municipal Corporation of Delhi. However, the implementation of the said Resolution was kept in abeyance vide Circular dated 21.07.2002. Subsequently vide Resolution No. 396 dated 25.10.2004, the House of the Municipal Corporation of Delhi carried out an amendment in its earlier Resolution No. 372 dated 15.10.2001 to the following effect: -</div><div style="text-align: justify;"><blockquote style="border: none; margin: 0 0 0 40px; padding: 0px;"><div style="text-align: justify;"><br /></div><div style="text-align: justify;">"Resolved further that the following clause dealing with the trespasser be also incorporated:-</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">A trespasser shall not be entitled to be considered for payment of damage charges or license fee in regard to Slum Properties/ Slum Rehabilitation tenements/ flats including the JJR Properties/ tenements, plots whether commercial, residential or institutional, stalls/kiosks, tharas existing not only in the walled city but also all over Delhi. This conditions shall be applicable in respect of the corporation Resolution No. 372 dated 15.10.2001 also such trespasser shall be evicted. However, he/she shall be liable to pay damage charges in respect of the Slum Properties, as aforesaid, for the period during which the land/premises remained under his/her occupation. The recovery of Such damage charges shall be effected in accordance with law".</div></blockquote></div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">9. From the amended Resolution No. 396 dated 25.10.2014, it is evident that the benefit of Resolution No. 372 dated 15.10.2001 cannot be extended to the trespassers of the Government Land as the same was withdrawn. Learned counsel for the Respondents further pointed out that Resolution No. 372 dated 15.10.2001 was kept in abeyance vide Circular dated 21.07.2002 that is prior to the issuance of the demand letter dated 05.08.2002. It is further the submission of the Respondents that the demand letter dated 05.08.2002 was issued based on a Resolution which was contrary to Section 200 of the Delhi Municipal Corporation Act, 1957 ("DMC Act"). As per Section 200 of the DMC Act, property of the Corporation could be disposed of only by the Commissioner that too with the sanction of the Standing Committee/Corporation, as the case may be and subject to a further condition that the same shall not be sold, leased or otherwise transferred at a consideration less than which it could have fetched in normal and fair competition. Further it is contended by the Respondents that as held by this Court in the case of B.S. Khurana Vs. Municipal Corporation of Delhi reported as (2000) 7 SCC 679, the property of the Corporation could not be sold/transferred even by the unanimous resolution of the house of the Corporation if the same is contrary to the provisions contained in the said Section 200 of the DMC Act.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">10. This Court heard the arguments advanced by the learned counsel for the parties and examined the documents placed on record by the parties.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">11. It is the specific case of the Respondent/DUSIB that the Petitioner is an encroacher of the Government Land. The land was earmarked and earlier was being used as community lavatory/toilet. However, the same was encroached upon by the Petitioner whereupon a multi- storied building has been constructed by him. No title documents are produced by the Petitioner to establish his right over the property in question. The Petitioner preferred the present Writ Petition based on his possessory rights as he is claiming to be in possession of the land in question from 1991-1992. Hence it is evident that the Petitioner is neither the owner nor tenant qua the land in question, rather he is an illegal and unauthorised occupant of the Government Land. Mere possession of a Tehbazari right does not entitle the occupant to usurp the Government land. Tehbazari right does not entitle the occupant to raise pucca construction. In the present case, record reveals that the Petitioner has encroached upon the public utility land and has raised pucca construction which cannot be permitted.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><b>12. It is well settled principle of law that no order can be passed to protect the possessory rights of an illegal encroacher of the Government Land. The Hon'ble Apex Court in the case of Jagpal Singh and others Vs. State of Punjab and others reported as 2011 (11) SCC 396 has taken judicial notice of the fact that since independence, in large parts of the country, unscrupulous persons using muscle powers, money power and political influence have systematically encroached on public utility land. The Hon'ble Supreme Court has also observed that this has been done with the active connivance with the State Authorities. The Hon'ble Apex Court deprecated the action of the State Authorities either in allotting the public utility land in favour of a person or in permitting an encroacher to occupy such public utility land. </b>In another case, titled as M.I. Builders (P) Ltd. Vs. Radhey Shyam Sahu reported as 1999 (6) SCC 464; the Hon'ble Supreme Court ordered restoration of a park after demolition of a shopping complex constructed at the cost of over Rs.100 Crores. Hence while exercising the discretionary Jurisdiction under Article 226 of the Constitution of India, no relief can be extended to the encroacher of Government land to protect his possessory rights.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">13. The Petitioner's case is predicated on the premises that the Respondents, based on the Resolution No.372 dated 15.10.2001 of the Municipal Corporation of Delhi, raised a demand vide letter dated 05.08.2002 for the regularization of the property in question. Since the Petitioner deposited the said demanded amount and completed all formalities as required by the Respondents, the Petitioner is claiming that he has a right to claim regularization. In this regard, it is relevant to quote the dicta of the Hon'ble Supreme Court in its recent Judgement in the case of Joginder & Anr. Vs. State of Haryana & Ors. reported as (2021) 3 SCC 300 which reads as follows:</div><div style="text-align: justify;">"8. It is required to be noted that the persons in illegal occupation of the Government Land/Panchayat Land cannot as a matter of right, claim regularization.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Regularization of the illegal occupation of the Government land/Panchayat Land can only be as per the policy of the State Government and the conditions stipulated in the Rules. If it is found that the conditions stipulated for regularization have not been fulfilled, such persons in illegal occupation of the Government Land/Panchayat Land are not entitled to regularization. ............."</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">14. In the present case, it is the case of the Respondent/DUSIB that the Resolution No.372 dated 15.10.2001 was amended vide another Resolution No.396 dated 25.10.2004 and as per the amended resolution, the trespassers are not entitled to be considered for the payment of damage charges or license fee qua the Slum Properties/ Slum Rehabilitation tenements/ flats including the JJR Properties/ tenements, plots whether commercial, residential or institutional, stalls/kiosks, tharas. It is also pertinent to note here that the Resolution No. 372 dated 15.10.2001 was kept in abeyance vide Circular dated 21.07.2002, even prior to the issuance of the demand letter dated 05.08.2002. Hence the Respondents ought not to have been issued the demand letter dated 05.08.2002. The Petitioner, who is a trespasser of the Government Land, is not entitled for the benefit of the said Resolution. Therefore, in view of the law laid down by the Hon'ble Supreme Court in Joginder & Anr. (supra), the Petitioner, who is an illegal encroacher of the Government Land, has no right to claim regularisation of his possessory rights.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">15. The Petitioner filed the present Writ Petition invoking the principle of promissory estoppel against the Respondents to claim his right over the property in question. As held by the Hon'ble Supreme Court in UOI & Ors Vs Godfrey Philips India Ltd & Ors., reported as 1986 AIR (SC) 806, the relevant portion of which reads as follows:</div><div style="text-align: justify;"><br /></div><blockquote style="border: none; margin: 0 0 0 40px; padding: 0px;"><div style="text-align: justify;">"...It is equally true that promissory estoppel cannot be used to compel the Government or a public authority to carry out a representation or promise which is contrary to law or which was outside the authority or power of the officer of the Government or of the public authority to make. We may also point out that the doctrine of promissory estoppel being an equitable doctrine it must yield when the equity so requires, if it can be shown by the Government or public authority that having regard to the facts as they have transpired, it would be inequitable to hold the Government or public authority to the promise or representation made by it, the Court would not raise an equity in favour of the person to whom the promise or representation is made and enforce the promise or representation against the Government or public authority. The doctrine of promissory estoppel would be displaced in such a case, because on the facts, equity would not require that the Government or public authority should be held bound by the promise or representation made by it......."</div></blockquote><div style="text-align: justify;"><br /></div><div style="text-align: justify;">16. This Court finds that the letter dated 21.07.2002 and the amended Resolution No.396 dated 25.10.2004 are in the public interest and in accordance with law. Benefits of the Government Policies should be extended to the law-abiding citizens and not to the illegal trespassers. Hence as held by the Hon'ble Supreme Court in Godfrey Philips India Ltd. (supra), the principle of Promissory Estoppel cannot be extended to the Petitioner.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">17. Learned counsel for the Petitioner alleges discrimination against him based on the Judgment dated 26.07.2007 passed by this Court in W. P. (C) No. 9192/2006 titled as Chandra Shekhar Vs. MCD & Ors. A perusal of the said Judgment shows that the said order was passed in the peculiar facts and circumstances of the said case. Hence the Petitioner cannot take any benefit from the said Judgment and as such this argument of the Petitioner holds no ground.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">18. In view of the discussion herein above, this Court finds no merits in the present Writ Petition. No interference in the impugned order dated 24.08.2016 passed by the Hon'ble Lieutenant Governor of Delhi is called for. Writ Petition is hereby dismissed. The Respondents are directed to refund the amount deposited by the Petitioner, if any, after deducting the damage charges for using the said property. The Respondents are further directed to take immediate steps to retrieve the possession of the property in dispute from the Petitioner being the Government land and further put the same to use for the benefit of public at large as per the permissible land use.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">GAURANG KANTH, J.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">AUGUST 22, 2022</div>Claim for Commonshttp://www.blogger.com/profile/06082132405339033351noreply@blogger.com0tag:blogger.com,1999:blog-5162401328122846212.post-91589428830481368922022-08-30T17:53:00.000+05:302022-08-30T17:53:00.812+05:30Madras High Court unhappy with non-compliance of its orders to evict encroachments from waterbodies [01.08.2022]<div style="text-align: justify;">The Madras High Court, on Monday, expressed its displeasure over non-compliance of a slew of directions issued by it to the Tamil Nadu government on January 27 to prevent unauthorised occupation of lands classified as water bodies in revenue records. The court warned that it would be constrained to summon the Chief Secretary if its orders were not implemented in letter and spirit within the next 10 days.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Miffed over a number of writ petitions continued to be filed regarding alleged encroachment of water bodies, the first Division Bench of Chief Justice Munishwar Nath Bhandari and Justice N. Mala wondered why the government had not implemented the January 27 order effectively. The court also imposed costs of Rs. 25,000 on one of the government officials for having failed to remove encroachments.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">A Bench comprising Chief Justice Bhandari and Justice P.D. Audikesavalu had, early this year, ordered demarcation of boundaries of all water bodies in the State in accordance with details available in Tamil Nilam website and ordered removal of all encroachments by issuing notices either under the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act of 2007 or the Tamil Nadu Land Encroachment Act of 1905.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Then, the court directed the government to preserve those water bodies by desilting them at regular intervals, creating public awareness about the need to preserve them and arranging cleanliness drive for the surroundings with local participation, and preventing unauthorized occupation by fencing as well as installation of closed circuit television cameras for surveillance or by appointing security guards wherever possible.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The court had also ordered that no registering authority under the Registration Act of 1908 should register any document in respect of any land which had been notified as water body in the revenue records and that a declaration must be obtained from every applicant for registration of property or for approval of layout or building construction or assessment of property tax or electricity or water connection that the concerned property was not located on a water body.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Officials responsible for granting layout approval, building plan approval, assessment of property tax and electricity or water connection were also directed to conduct physical inspection of the site and also cross check the revenue records and confirm that the property in question was not located on a water body. They were further warned of disciplinary action if there were complaints of having granted approval to properties located on waterbodies.</div>Claim for Commonshttp://www.blogger.com/profile/06082132405339033351noreply@blogger.com0tag:blogger.com,1999:blog-5162401328122846212.post-20907502036380340212022-08-30T12:53:00.002+05:302022-08-30T17:41:09.026+05:30Supreme Court of India: If no pond exists on site, revenue records can be corrected after inspection [26.08.2022]<div style="text-align: justify;"><span style="text-align: left;">REPORTABLE </span></div><div style="text-align: center;"><br /></div><div style="text-align: center;">IN THE SUPREME COURT OF INDIA </div><div style="text-align: center;"><br /></div><div style="text-align: center;">CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5841/ 2022 </div><div style="text-align: center;">ARISING OUT OF </div><div style="text-align: center;">PETITION FOR SPECIAL LEAVE TO APPEAL (CIVIL) NO. 37439 OF 2016 </div><div style="text-align: center;"><br /></div><div style="text-align: center;"><br /></div><div style="text-align: center;">THE STATE OF RAJASTHAN AND ANOTHER <span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span>.… APPELLANTS </div><div style="text-align: center;"><br /></div><div style="text-align: center;">Versus </div><div style="text-align: center;"><br /></div><div style="text-align: center;">ULTRATECH CEMENT LTD<span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span>.... RESPONDENT </div><div style="text-align: justify;"><br /></div><div style="text-align: center;">JUDGMENT</div><div style="text-align: center;"><br /></div><div style="text-align: justify;">HIMA KOHLI, J.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">26.08.2022</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">1. Leave granted.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">2. The appellant–State of Rajasthan has assailed the judgment dated 26th February, 2016, passed by a Division Bench of the High Court of Judicature for Rajasthan Bench at Jaipur whereby the order dated 05th October, 2012, passed by the learned Single Judge dismissing a writ petition preferred by the respondent–Ultratech Cement Ltd. (S.B. Civil Writ Petition No. 15416 of 2012) was set aside and its appeal allowed with a direction to the appellant–State Government to process the allotment of the land in favour of the respondent–Company for setting up a cement plant in Tehsil Nawalgarh, District Jhunjhunu, in terms of the letter of allotment dated 23 rd February, 2012.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">3. A brief overview of the facts of the case is necessary.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">3.1 With the idea of setting up a Cement plant having the capacity of 3 million tons of cement per annum in four villages situated in Tehsil Nawalgarh, District Jhunjhunu, spreading over 1000 hectares of land, the respondent–Company purchased/acquired 400 hectares of land through direct negotiations and took steps to acquire the remaining part of land through private negotiations, as also by way of allotment through RIICO. For executing the project of cement manufacturing, the respondent–Company applied to the appellant–State Government in the year 2000 – 2001 for grant of adjoining mining leases for mineral lime stone (cement grade) in Tehsil Nawalgarh, District Jhunjhunu. A letter of intent was issued by the appellant–State Government on 16th March, 2002 in respect of two mining leases, but due to non-availability of environment clearance within the stipulated time, the said LOI was cancelled by the State Government by order dated 07th February, 2005. The said order was challenged by the respondent–Company by preferring a revision petition before the Mines Tribunal which was allowed vide order dated 19th July, 2007 and the matter was remitted back to the State Government for fresh examination in accordance with law. The appellant–State Government vide order dated 22nd November, 2007, restored the LOI subject to compliance of certain conditions and on an undertaking to be furnished by the respondent–Company. The said LOI was however, cancelled by the Mines Tribunal vide order dated 29 th July, 2009. Aggrieved by the said cancellation order, the respondent–Company approached the High Court by filing a writ petition which was allowed vide order dated 19th August, 2010 and the appellant–State Government finally issued a LOI on 28th October, 2010. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">3.2 This time, the District Collector, Jhunjhunu issued an approval letter dated 23 rd February, 2012, for allocation of Government land falling under mining lease area to the respondent–Company for setting up a cement plant subject to the fulfillment of certain conditions stipulated therein. The captioned letter issued by the District Collector, Jhunjhunu is extracted hereinbelow:</div><div style="text-align: justify;"><br /></div><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px;"><div style="text-align: justify;">“Sir, Vide above referred letter under above mentioned subject, the State Government has granted approval for reservation and allocation of land falling under mining lease area for setting up a cement plant is granted under Section 92 of the L.R. Act which shall be subject to the fulfillment of the below mentioned conditions: -</div></blockquote><div style="text-align: justify;"><br /></div><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><div style="text-align: justify;">(i) Approval for allocation of the land recorded as pasture land in the mining leased area is given in favour of the applicant company subject to the condition that the company shall surrender the land equivalent to the allocated land after purchasing it in the same village and after developing it as grazing land and will also make it available to the concerned Gram Panchayat after doing fencing of the four walls of the land.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(ii) In-principle consent for allocation of the gair-mumkin johad land falling under mining lease area, as applied for by the company, is given in favour of the company subject to the condition that company shall purchase other land and develop it as Johad and surrender it to the Gram Panchayat. The company shall also produce NOC/ orders for allocation of Johad land obtained from Hon'ble High Court.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(iii)Company's application for allocation will be considered only after producing permission/ NOC of the competent authority of Panchayat Raj Vibhag and Education Department for gair-mumkin abadi school, graveyard, maszid etc. situated on the mining lease area.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(iv) 0.32 Hectare land in the mining lease area is recorded in the name of Ajmer Electricity Distribution Corporation Ltd. Above land shall be allocated in favour of the applicant-company on producing NOC from the Ajmer Electricity Distribution Corporation Ltd.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(v) Consent is issued for allocation of the classified land of gair-mumkin Bani & gair-mumkin passage as per your proposal which falls under mining lease area for the purpose in accordance with rules.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Therefore, kindly ensure action as above.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Encl: as above.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Sd/-</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">District Collector, Jhunjhunu” </div></blockquote><div style="text-align: justify;"><br /></div><div style="text-align: justify;">3.3 In view of condition No. (iii) contained in the captioned letter which called upon the respondent–Company to produce NOC/orders for allocation of ‘Johad’ land from the High Court, the respondent–Company approached the High Court by filing S.B. Civil Writ Petition No.15416/2012. Accompanying the said writ petition were several documents pertaining to the spot inspection of the site, the Reports of the Tehsildar and the correspondence between the parties to demonstrate that the subject land that had been classified as ‘Johad’, neither fell in the catchment area, nor did water gather there and there did not exist any natural source of water on the subject land and therefore, classification of the subject land could be converted to ‘Siwai Chak’ land. Not persuaded by the averments made in the writ petition, the learned Single Judge dismissed the writ petition at the stage of admission itself with an observation that it is for the State Government to decide whether the disputed land is ‘Johad’ land or not and that the Court was bound by the judgment of the Division Bench of the High Court in the case of Abdul Rahman v. State of Rajasthan and Others.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">3.4 Dissatisfied with the in limine dismissal of its writ petition, the respondent–Company preferred an appeal before the Division Bench of the High Court registered as D.B.Special Appeal (Writ) No. 73/2013. Noting that several representations submitted by the respondent–Company to the appellant–State Government for examining the matter afresh and for making necessary corrections in the revenue records were pending, vide order dated 23rd November, 2015, the Division Bench directed the appellant–State Government to consider the respondent’s representations in the light of the observations made in the case of Director General, Research and Development v. State of Rajasthan & Others, in particular, para 3 thereof, that is extracted hereinbelow:</div><div style="text-align: justify;"><br /></div><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px;"><div style="text-align: justify;">“It is conceded on facts that in fact there is no Gair Mumkin Nadi existing on the spot, therefore the decision rendered by the Division Bench of this court in (Abdul Rahman Vs. State of Rajasthan & Ors.) shall not come in the way of the respondents in making the allotment. In view of aforesaid factual matrix and considering the nature of requirement, we direct that let the allotment be processed as assured within six weeks from today". </div></blockquote><div style="text-align: justify;"><br /></div><div style="text-align: justify;">While passing the aforesaid order, it was made clear that in the event the appellant– State Government does not decide the representation of the respondent–Company, the appeal will be decided on merits.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">3.5 In compliance of the aforesaid order, the appellant–State Government passed an order dated 25th January, 2016, holding inter alia that the subject land having been recorded in the revenue record as ‘Johad’, no allotment could be made in favour of the respondent–Company. In view of the aforesaid stand taken by the appellant–State Government, the Division Bench proceeded to hear the respondent’s appeal on merits and allowed the same by virtue of the impugned judgment whereunder the appellant– State Government has been directed to allot the subject land in question to the respondent–Company and take consequential steps in the matter. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">3.6 The High Court has specifically recorded in the impugned judgment that learned counsel for the appellant–State Government did not dispute the fact even before the Court that though the subject land in question was classified as ‘Johad’, it neither fell within any catchment area, nor did water ever collect there and there was no natural water reservoir on the subject land. The court opined that looking at the topography of the area, the site in question did not have use for any other purpose at all. In fact, the said site selected for mining, had commercially viable lime stone deposits and the selection was made after due consultation with the Gram Panchayat, Baswa. Thus, there was no justification for turning down the fact-finding Reports filed by the Tehsildar, Land Records, Nawalgarh, regarding the status of the land. In fact, the said Reports had been duly accepted by the appellant–State Government.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">3.7 The impugned judgment went on to record that in Abdul Rahman’s case, referred to by the learned Single Judge, the Court had only directed the State Government to chalk out a plan for restoration of the catchment areas to their original shape. The said judgment did not prohibit alienation of the property held as a public trust except for highlighting the fact that any such alienation would require a higher degree of judicial scrutiny, thus creating a balance between the Doctrine of Public Trust and the Doctrine of Sustainable Development. It was observed that a pragmatic view ought to be taken in the matter, more so, when the area classified as ‘Johad’, did not fall in any catchment area, nor was there any natural water reservoir for it to be declassified from the category of ‘Johad’ to ‘Sawai Chak’ land.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">4 Mr. Milind Kumar, learned Standing Counsel appearing for the appellant–State Government has assailed the impugned judgment by submitting that the same runs contrary to the judgment of the High Court in Abdul Rehman’s case where it has been held by the Division Bench that no right can be given to use Nadi land or other water bodies for construction activity and that catchment of pond/water reservoir shall not be allotted for any personal/commercial purposes; that utilizing the ‘Johad’ land for commercial purpose may cause environmental damage; that the High Court has erred in placing reliance on Director General, Research and Development; that there are decisions of this Court as in Vellore Citizens’ Welfare Forum v. Union of India and Others, A.P Pollution Control Board v. Prof. M. V. Nayudu (Retd.) And Others, Lafarge Umiam Mining Private Limited (Applicant) in T.N. Godarvarman Thirumulpad v. Union of India and Others, Electrotherm (India) Limited v. Patel Vipulkumar Ramjibhai and others, Common Cause v. Union of India, Alembic Pharmaceuticals Limited v. Rohit Prajapati and Others that have highlighted the use of precautionary principle in environmental matters and held that the burden of proof is on the project proponent who is proposing to alter the status quo or impact the environment. Reference was also sought to be placed on the judgment of this Court in Jagpal Singh and Others v. State of Punjab and Others, where directions were issued to all State Governments to prepare schemes for eviction of illegal occupants of Gram Sabha land and for restoration of the said land for common use of the villagers of the area. Learned counsel for the appellant–State Government went on to refer some additional documents filed recently, in particular, letter dated 07th July, 2014, addressed by the Tehsildar, Nawalgarh to the District Collector which mentioned the status of land in one of the four villages identified as mining area in district Jhunjhunu, namely Village Baswa and stated that in some khasra numbers of the said village, there exists a pucca pond which acts as a catchment area of rain water. Some circulars issued by the State Government have also been cited which state that all the allotments which were recorded in the revenue records as nala, river, pond, dam or embankment after 1955 and were converted by changing the land classification from agricultural purpose to non-agricultural purpose, be referred to the competent Court with the relevant facts for classification of allotment.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">5 The aforesaid submissions have been repelled by Mr. Hiren P. Raval, Senior Advocate appearing for the respondent–Company who submitted that the present appeal is not maintainable when the appellant–State Government has already given its in-principle consent for the respondent–Company to use the subject land for mining purpose subject to obtaining a No Objection Certificate from the High Court. Once the High Court has given a No Objection Certificate in terms of the view expressed in the impugned judgment, there was no occasion to file the present appeal. On merits, it was submitted that there is no good reason for the appellant–State Government to have refused to rectify the error in the revenue records in respect of the classification of the parcel of land, part of which has been wrongly classified as ‘Gair-Mumkin Johad’ i.e. reservoir land, despite the fact that the Tehsildar, Nawalgarh and the District Collector, Jhunjhunu submitted two Reports stating inter alia that there was no water reservoir on the subject land at any point in time. To substantiate the said submissions, learned counsel referred to the two Reports submitted by the Tehsildar, Nawalgarh dated 19th/27th April, 2011 and 25th November, 2012/5th December, 2012. He also took this Court through the recommendations made by the District Collector, Jhunjhunu calling upon the State Government to examine the matter and pass appropriate orders. In particular, he referred to the letters dated 19th December, 2012 and 26th, February, 2013, addressed by the District Collector, Jhunjhunu to the Deputy Secretary, Revenue Department of the State Government recommending change of class of the land in the revenue records from ‘Gair-Mumkin Johad’ to ‘Sawai Chak’ land, on the basis of the certificates issued by the Tehsildar, Nawalgarh. Learned counsel pointed out that at no stage has the appellant–State Government disputed the Reports of the Tehsildar or the recommendations made by the District Collector. Instead, it has been harping on the judgment of the Division Bench of the High Court of Rajasthan in Abdul Rehman’s case, without appreciating that the said judgment has not declared that alienation of property held as a public trust, is totally prohibited. It was submitted that the fact situations of each case would have to be examined before taking a decision and in the instant case, it is not disputed by the appellant–State Government that the subject land does not fall in any catchment area, water does not collect there and there is no natural water reservoir on the land. In all this back and forth that commenced in the year 2000 and is continuing till now, the environment clearances issued in favour of the respondent–Company are going to lapse at the end of the year 2022, which would automatically result in cancellation of the LOI issued by the appellant–State Government, thus, leaving the respondent–Company high and dry for no fault attributable to it. It was therefore urged that the impugned judgment does not deserve to be interfered with, as it is based on fact finding Reports submitted by the revenue authorities that have not been questioned by the appellant–State Government till date. We have heard the arguments advanced by the learned counsel for the parties, perused the impugned judgment and the documents placed on record. The only issue that arises for the consideration of this Court is that once an in-principle consent has already been accorded by the appellant–State Government for reservation and allocation of the subject land under the mining lease in favour of the respondent– Company for it to set up a cement plant and the condition inserted in the approval letter dated 23rd February, 2012 that the respondent–Company should produce a No Objection Certificate / order from the High Court permitting allocation of ‘Gair–Mumkin Johad’ land stands satisfied by virtue of the impugned judgment, would a challenge still lie against the same at the instance of the appellant–State Government? A perusal of the impugned judgment indicates the following factors that have weighed with the High Court for allowing the appeal preferred by the respondent– Company :-</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(a) That the Tehsildar, Nawalgarh had made a physical spot inspection of the subject land in question and submitted a detailed Report to the District Collector, Jhunjhunu on 19th April, 2011 stating that the subject land, classified as a ‘Johad’ neither fell in the catchment area, nor did water ever collect there and that no natural source of water existed on the subject land;That the subject land was again inspected by the Tehsildar, Land Records, Nawalgarh, who sent a Report to the District Collector, Jhunjhunu on 25th November, 2012 / 05th December, 2012 stating inter alia that there is no natural water body on the subject land and the ‘Gair-Mumkin Johad’ falling under the proposed mining lease area, does not fall within the water logging area or the catchment area. Therefore, a recommendation was made for change of the class of land and for recording it as ‘Sawai Chak’ land;</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(b) That the District Collector, Jhunjhunu made his recommendations on two different occasions to the State Government for issuing necessary orders to correct the revenue records and change the classification of the land to be recorded as ‘Sawai Chak’ land.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(c) That on receiving a communication dated 01st February, 2013 from the State Government calling upon him to re-examine the matter and pass appropriate orders, the District Collector, Jhunjhunu had once again made a recommendation vide letter dated 26th February, 2013, that necessary orders for correction of the revenue records ought to be made in the instant case;</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(d) That the Gram Panchayat Baswa, Tehsil Nawalgarh, District Jhunjhunu passed Resolution No.21 dated 03rd February, 2011, stating that no water had ever accumulated in the subject land and the Gram Panchayat had no objection in granting the said land classified as ‘Johad’, to the respondent– Company for mining lease purposes, subject to the Company giving equal measure of developed land to the Gram Panchayat in the same village;</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(e) the Court took note of the undertaking given by the respondent–Company in the writ proceedings for initiating the following activities for the benefit of the surrounding villages – </div><div style="text-align: justify;"><br /></div><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><div style="text-align: justify;">(i) Equal and alternate land to be developed as 'Johad' in place of 'Johad' land in the mining activity area in the same village so that villagers could benefit from the basic amenities.</div><div style="text-align: justify;">(ii) Creation of a water reservoir in the mined out area. </div><div style="text-align: justify;">(iii) Development of water harvesting structures for augmenting ground
water recharging in the area.</div><div style="text-align: justify;">(iv) Initiation of CSR activities in the surrounding villages.</div></blockquote><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(f) The respondent–Company gave an undertaking before the Court that development of the site for alternate ‘Johad’ would be done in a planned manner where the catchment area, water harvesting structures and cattle grazing land would be developed. The Company also undertook to convert Dug-cum-Bore Well (DCB Well) into injection wells in order to develop suitable drainage pattern for augmentation of ground water table; </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">8 It is a matter of record that the appellant–State Government has not questioned the Reports prepared by the Tehsildar, Nawalgarh after making spot inspection on two occasions. The position remains the same even as of now. The first Report was prepared by the Tehsildar on 19th/27th April, 2011 and the second one on 25th November, 2012/05th December, 2012. Both the Reports were categorical in their findings that there was no natural water body on the subject land classified as a ‘Johad’ and that the subject land neither fell in the catchment area, nor did water ever collect there and there was no natural source of water that existed on the subject land. That being the position, we see no reason to permit learned counsel for the appellant–State Government to rely on a communication dated 02nd July, 2014, addressed by the Tehsildar to the District Collector, in respect of a part of the subject land falling in village Baswa to urge that there exists a pucca pond at some spots, more so when there is no explanation for not filing the documents. The aforesaid communication could have easily been filed by the appellant–State Government before the High Court at the appropriate stage, well before the date of passing of the impugned judgment. Nothing prevented the appellant–State Government from producing the relevant photographs of the purported pucca pond existing at some spots within village Baswa. It is not the case of the appellant–State Government that the earlier Reports submitted by the Tehsildar, Nawalgarh after conducting a physical spot inspection had been manipulated or prepared in a mala fide manner, nor is there any averment made in the appeal that departmental action was initiated against the then Tehsildar, Nawalgarh for having prepared incorrect Reports of the spot inspection. Given the said position, there is no reason to discard the two Inspection Reports prepared by the Tehsildar, Nawalgarh that form a part of the record. Both the said Reports have stated in clear terms that there is no natural water body on the subject land and the ‘Gair–Mumkin Johad’ falling under the proposed mining lease area does not fall within the water logging area or the catchment area. We, therefore, decline to give any weightage to the letter dated 07th July, 2014 addressed by the Tehsildar, Nawalgarh to the District Collector, Jhunjhunu. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">9 The Circulars dated 26th June, 2012, 17th April, 2013 and 26th July, 2017 issued by the Revenue Department can also not be of any assistance to the appellant–State Government, for the simple reason that the said circulars came to be issued in compliance of the judgments of the High Court and this Court directing removal of encroachment from the Gram Panchayat land and eviction of unauthorized occupants therefrom. The present case does not fall in the above categories for the simple reason that the respondent–Company has applied through proper channel for allotment of land for mining purpose; it has received requisite environment clearances followed by LOIs issued by the appellant–State Government. Armed with the necessary approvals from the State Government for reservation and allocation of land falling under mining lease area, the respondent–Company had approached the revenue authorities for setting up a plant on the subject land and requested that necessary changes be made in the revenue records pertaining to land described as ‘Johad’ at certain spots, where in fact, no ‘Johad’ actually existed. In this context, the recommendations made by the District Collector, Jhunjhunu gain significance. The first letter in this regard was addressed by the District Collector to the Deputy Secretary, Revenue Department of the appellant–State Government on 19th December, 2012, relevant extract whereof is reproduced hereinbelow:</div><div style="text-align: justify;"><br /></div><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><div style="text-align: justify;">“When a site inspection report in this connection was sought from Tehsildar, Nawalgarh, he informed vide his letter No.2501 dated 5.12.12 that there is a government primary school building on the gair-mumkin Johad land of Khasra No.493 area 3.96 hectare, Khasra No.546 raqba 16. 73 hectare, Khasra No.608 raqba 17.55 hectare, Khasra No.649 raqba 4.81 hectare, Khasra No.1304/493 raqba 0.14 hectare and Khasra No.1316/ 608 raqba 0.11 hectare land situated in village Basawa and rest of the land does not come within the catchment area. Land of the above mentioned Khasra Numbers does not have any natural water reservoir, nor it is in the catchment area. Tehsildar, Nawalgarh has recommended to change its class and declare it Sivaychak land.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">In perspective of the above decisions of Hon'ble Rajasthan High Court and enclosing herewith the Tehsildar Report attached with letter No.2501 dated 5.12.12 (copy enclosed) and copy of the enclosed Jamabandi for Samvat 2067-2070, it is submitted that Tehsildar's report has been analyzed and I am satisfied with the report. As per the site inspection report of the Gair-mumkin Johad land of Khasra No.493 area 3.96 hectare, Khasra No.546 raqba 16.73 hectare, Khasra No.608 raqba 17.55 hectare, Khasra No.649 raqba 4.81 hectare, Khasra No.1304/4 93 raqba 0.14 hectare and Khasra No.1316/608 raqba 0.11 hectare land situated in village Basawa, there is a government primary school on 0.10 hectare land out of 16.73 hectare of Khasra No.546 it is recommended that class of the above land may be changed and allocated to M/s Ultratech Cement Limited Co. in accordance with law.” </div></blockquote><div style="text-align: justify;"><br /></div><div style="text-align: justify;">10 After receiving the aforesaid letter, the Secretary, Revenue Department addressed a letter dated 1st February, 2013 to the District Collector, Jhunjhunu clearly stating inter alia that only he as the ‘District Collector’ must certify whether the land in question is a ‘Johad’ land or not and the said certification is not to be done by the State Government. Therefore, the District Collector was directed to visit the site himself and inquire into the matter and then issue appropriate orders. In compliance of the said directions, the District Collector wrote another letter dated 26th February, 2013 to the Deputy Secretary, Revenue Department, reiterating that the revenue records do not record any water reservoir in the relevant khasra numbers of the subject land and it was in this background that letter dated 19th December, 2012 had been issued by him recommending change of class of the land on the basis of the certification of the Tehsildar, Nawalgarh in the revenue records. It was again stated by the District Collector that in the light of the Report of the Tehsildar and the copies of old and current revenue records, orders may be issued by the State Government with regard to change of class of the proposed land that was entered into revenue records as ‘Johad’. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">11 The aforesaid material has been examined at length in the impugned judgment. The High Court has also taken note of the Resolution passed by the Gram Panchayat, village Baswa and the certificate issued by the Gram Panchayat which records that no water had ever accumulated on the subject land and the Gram Panchayat did not have any objection to the said land being granted to the respondent–Company for mining lease purpose subject to the condition that it would be receiving an equal measure of developed land in the same village from the respondent–Company in view of the land being consumed for mining lease purpose. The respondent–Company has also given undertakings to the High Court that the environment of the village will not be adversely impacted and the ecological balance shall be maintained. One of the undertakings given by the respondent–Company is that the site identified for development of an alternate ‘Johad’ would be identified and developed in a planned manner, so as to create a catchment area, water harvesting structure and cattle grazing land. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">12 Given the above background, reliance placed by learned counsel for the appellant–State Government on the judgments cited by him, is found to be misplaced. In Vellore Citizens’ Welfare Forum6 and A.P Pollution Control Board, this Court recognized the requirement of reconciliation between the concept of development and ecology as a facet of sustainable development. The relevant Articles of the Constitution of India including Articles 21, 47, 48-A, 51-A (g) that protect and improve the environment have been highlighted and the Precautionary Principle and Polluter-Pays Principle have been declared to be a part of the environmental law of the country. It has also been accepted that the burden of proof should lie on the entity proposing an activity that is potentially harmful to the environment. There can be no quarrel with the above position, but neither of the aforesaid judgments are relevant in the facts and circumstances of the instant case, inasmuch as no burden has been placed on the respondent–Company to demonstrate that the industry proposed to be set up by it, shall not cause any serious and/or irreversible harm to the ecology of the area. On the contrary, it is the stand of the Revenue Department of the appellant–State Government itself that there is no likelihood of any damage to the ecology of the area as the spot inspections reveal that there is no pond existing on the subject land that may be impacted adversely.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">13 In Narmada Bachao Andolan v. Union of India, this Court had the occasion to discuss the Precautionary Principle and it was held that the said principle and the corresponding burden of proof on the person who wants to change the status quo, will ordinarily apply in the case of polluting or other projects or industry where the extent of damage likely to be inflicted, is not known. But when the effect of the project is known, then the principles of sustainable development would come into play which will ensure that mitigative steps can be taken to preserve the ecological balance. In the present case, there is no such uncertainty due to lack of availability of data or scientific material about the damage if any, likely to be caused to the ecological balance of the area. Instead, detailed spot inspections have been conducted by the revenue authorities from time to time that establish that there is no ‘Johad’ existing on the subject land. Despite that, the respondent–Company has been directed to develop an alternate ‘Johad’ in a planned manner at the same area, as a mitigative step which it has undertaken to execute.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">14 In Lafarge Umiam Mining Private Limited, this Court has recognized the fact that the environment has different facets and universal dependence of humans for the use of environmental resources for the most basic needs, inescapably requires choices to be made at different levels on environmental protection and factor in the risks which are to be regulated, as recognized by the concept of sustainable development. Conceding that it is impossible to lay down ‘across-the-board’ principles and much would depend on the facts of each case, this Court opined that what was required to be seen was how much protection would be sufficient and whether ends would be served by diverting resources to other uses and at the same time, strike a fine balance between environmental protection and environmental risk. No such fine balance is required to be struck in the instant case when admittedly, the spot inspections show that there does not exist any ‘Johad’ on the subject land that is likely to be affected on account of the change proposed in the revenue records.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><b>15 The directions issued in Jagpal Singh’s case calling upon State Governments to prepare a scheme for eviction of illegal/unauthorized occupants of Gram Sabha land also do not come in the way of the respondent–Company. The purpose of the said direction was to prepare a scheme for removal of illegal occupants expeditiously. This does not prevent the respondent–Company from approaching the Court for correction in the revenue records when the site inspection Reports prepared by the Revenue Authorities show that there is no water body or catchment area on the subject land.</b> </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">16 The focus in the case of Electrotherm (India) Limited was on conducting public hearings as a mandatory requirement of the environmental clearance process and the Court has frowned upon doing away with public hearings in the course of the decision- making process. In the case of Common Cause, this Court was seized of the aspect of illegal/unlawful mining in the State of Odisha and it was observed that Courts cannot interfere with the Mining Policy or lay down limits on the extent of mining activity that should be permitted by the State/Central Government. The said decision does not have any application to the facts of the instant case where the appellant–State Government has already given an in-principle consent for setting up a cement plant in favour of the respondent–Company and the High Court was only required to examine the aspect of correction in the revenue records in relation to the subject land where a ‘Johad’ was mentioned, but none existed at site.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">17 In Alembic Pharmaceuticals’ case, the issue before this Court was with respect to the operation of industries without obtaining prior environmental clearance for a long time and their liability on account of such non-compliance. Noting that the industries had evaded the legally binding regime of obtaining environment clearance, it was held that penalty must be imposed on them for disobedience and non-compliance of the rules and regulations. Here, the respondent–Company has admittedly received environmental clearances and in spite of the same, its project has not taken off due to various hurdles created by the appellant–State Government. Clearly, the present case is not one of breach of any norms for imposition of penalty on the respondent–Company. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">18 Even the judgment of the Division Bench of the Rajasthan High Court in the case of Abdul Rehman is being completely misread by the appellant–State Government. The focus in the said judgment was on the restoration of the catchment area to its original shape for which a plan was directed to be drawn up which included demarcation of the catchment areas, demarcation of drainage channels etc. Nowhere in the said judgment has it been observed that the description of a land as a pond in the revenue records, when no pond exists on site, cannot be corrected after conducting a spot inspection. We are inclined to accept the submission made by learned counsel for the respondent–Company that in the absence of any pond at the spot, the decision rendered in the case of Abdul Rehman cannot be an impediment for processing the application of the respondent–Company for allocation of the subject land, for setting up a cement plant. The High Court has rightly referred to the decision of this Court in Director General, Research and Development, where noting the fact that there was no ‘Gair-Mumkin’ Nadi existing on the spot, it was observed that the decision of the High Court in Abdul Rahman will not come in the way of allotting the land to the petitioner. </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">19 For the aforesaid reasons, we concur with the findings returned in the impugned judgment which is upheld. The appellant–State Government is directed to take necessary steps to process the allotment of the subject land in favour of the respondent–Company within four weeks from today. The respondent–Company shall file a fresh undertaking with the State Government, within the same timeline, as was filed by it before the High Court, for initiating time bound activities for the benefit of the surrounding villages, as compensatory measures for the allocation of the subject land. The appeal is dismissed while leaving the parties to bear their own expenses.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">.................................CJI.</div><div style="text-align: justify;">[N. V. RAMANA] </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">...................................J.</div><div style="text-align: justify;">[HIMA KOHLI] </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">.................................J. </div><div style="text-align: justify;"><span style="background-color: white; font-family: "Times New Roman", Times, serif; font-size: 16.9px;">[C. T. RAVIKUMAR]</span></div>Claim for Commonshttp://www.blogger.com/profile/06082132405339033351noreply@blogger.com0tag:blogger.com,1999:blog-5162401328122846212.post-22721482403562256162022-08-28T22:56:00.000+05:302022-08-28T22:56:05.251+05:30 Odisha HC: Cause of concern if no surplus gochar land available. Petitioner only alleged illegality of conversions [29.072022]<div style="text-align: center;">IN THE HIGH COURT OF ORISSA AT CUTTACK </div><div style="text-align: center;">W.P.(C) No.22924 of 2020 </div><div style="text-align: center;"><br /></div><div style="text-align: center;">Srinath Mishra <span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span>.... Petitioner </div><div style="text-align: center;">Petitioner in person <span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span></div><div style="text-align: center;"><br /></div><div style="text-align: center;">-Versus- </div><div style="text-align: center;"><br /></div><div style="text-align: center;">State of Odisha and others <span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span>.... Opposite Parties </div><div style="text-align: center;">Mr. Ishwar Mohanty, ASC <span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span></div><div style="text-align: center;"><br /></div><div style="text-align: justify;">CORAM:
THE CHIEF JUSTICE
JUSTICE R.K. PATTANAIK </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">DATE OF JUDGMENT : 29.07.2022 </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">R.K. Pattanaik, J </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">1. Instant writ petition is at the behest of the Petitioner under Articles 226 and 227 of the Constitution of India, 1950 for issuance of a writ of mandamus or directions of like nature to the Opposite Parties to summarily evict the encroacher from the case land; to direct O.P.Nos.3&4 to enquire into the allegation regarding forcible occupation of gochar, anabadi and endowment land by O.P.No.5 with reference to the provisions of the Orissa Government Land Settlement Act, 1983 (hereinafter referred to as 'the OGLS Act'); to stop construction work over the land in question; and also to pass appropriate orders deemed just and proper in the facts and circumstances of the case.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">2. The Petitioner approached this Court challenging the action of O.P. Nos. 1 to 4 in allowing O.P.No.5 for raising a construction of a grinding unit over an area of 100 acres of land for production of cement from a unit at Haridaspur, P.S./Tahasil-Dharmasala. According to the Petitioner, the above factory is proposed over the agricultural land with human habitation having number of villages around which is likely to affect a population of 30,000 on account of pollution and other hazards. As per the claim of the Petitioner, O.P.No.5 is said to have encroached huge area of gochar land and has surrounded it by a boundary wall without any sanction and approval of the revenue authorities and that apart, lands which are recorded with Lord Jagannath and in the name of Bhagabat Gosain over plot Nos.917, 925 & 942 under Khata No.168/19 situated in Nanapur mouza have also been illegally possessed in contravention of the endowment law. The Petitioner alleged that the local administration clandestinely changed the kisam of gochar of land in order to facilitate its transfer in favour of O.P.No.5 through the Industrial Infrastructure Development Corporation, Orissa (IDCO) and the above action is contrary to law as the Supreme Court of India deprecated the utilization of gochar land and even regularizing the possession of unauthorized occupants. It has been further claimed by the Petitioner that a representation was submitted to O.P.No.4 with a copy to O.P.No.3 for eviction of O.P.No.5 for its unauthorized possession of the schedule land but no action was taken thereon and not only that, the Board of Revenue was also approached for a direction to O.P.No.3 to cancel the dereservation orders. With the above contention, the Petitioner pleaded that not only the gochar land was diverted for commercial purpose but also the endowment lands of the deities were handed over to O.P.No.5 for construction of the cement factory in gross violation of the provisions of law which, therefore, requires an enquiry followed by eviction of the illegal occupier and thereby restoring the land to the Government.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">3. Heard Mr. S. Mishra in person, Mr. Ishwar Mohanty, learned ASC for O.P.Nos.1 to 4 and Mr. B.P. Mohanty, learned counsel for O.P.No.5.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">4. O.P.No.5 filed a counter affidavit denying all the allegations of the Petitioner and pleaded that there is no cause of action to bring the litigation and material facts have also been suppressed and therefore, the matter deserves to be dismissed in limini. It is pleaded by O.P.No.5 that the instant writ petition is filed suppressing the fact of an earlier proceeding for the self-same cause of action disposed of by the National Green Tribunal in O.A. No.12 of 2015(EZ), wherein, by order dated 18th December, 2019, a Committee was constituted to inspect the project in question and verify the allegations and to take appropriate action against the project proponent, if such allegation is found to be correct. Further pleaded by O.P.No.5 that after obtaining necessary permission from O.P.No.3 under the OLR Act, large extent of land measuring an area of 152 acres was purchased and also obtained approval in respect thereof besides permission from statutory authorities for the said purpose and after taking over possession the land fenced it by a boundary wall and since some Government land was found lying within that area, the Industrial Promotion and Investment Corporation of Orissa Ltd.(IPICOL) was moved for alienation and allotment of the same and in that regard, necessary recommendation was received from SLFC for its acquisition by IDCO. As also pleaded, O.P.No.5 moved for considering the alienation and in that regard, O.P.No.3 as per the provisions of OGLS Act and Rules allowed dereservation of the Government land in favour of IDCO for establishment of industries and allied facilities including social infrastructure. In so far as some land of Bhagabat Gosain which also fell within the area of the land acquired, the concerned Marfatdars have in the meantime approached the Commissioner of Endowments in O.A. No.28 of 2019 seeking no objection certificate which is pending disposal. In response to the above, the Petitioner filed a rejoinder and reiterated the facts and position of law with regard to misutilization of the land by dereservation and further encroachment by O.P.No.5 for setting up of the proposed factory over the same. The O.P.Nos.1 to 4 have not filed any counter affidavit but opposed the claim of the Petitioner regarding alleged violations while sparing the schedule land for the establishment of the unit.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">5. The Petitioner contended that such unauthorized possession of the schedule land by O.P.No.5 is brazenly manifest considering the fact that the local administration without following the law and restrictions in place illegally dereserved the gochar land and also handed over the lands of deities without approval of the endowment authority and besides that the representation under Annexure-3 was not considered and no action was taken in that regard. Mr. Mishra contended that the gochar plots have been illegally converted with kisam being changed and transferred in favour of O.P.No.5 by the order of O.P.No.3 (Annexure-1). Furthermore, Mr. Mishra placed reliance on the following decisions of the Supreme Court in the case of State Jharkhand and others v. Pakur Jagran Manch and others (Civil Appeal No.436 of 2011) and Jagpal Singh and others v. State Punjab and others (Civil Appeal No.1132 of 2011) which are with regard to dereservation of gochar land and encroachment of the land possessed by the GPs in collusion with the officials of the local administration besides a letter dated 5th Mach, 2018(Annexure-2) from the Secretary, Animal Welfare Board of India addressed to the Chief Secretary of all the States/UTs seeking information vis-à-vis gochar lands and the extent of which have been converted/dereserved; illegally possessed or encroached besides other details in compliance of the guidelines of the Apex Court in Pakur Jagran Manch case (supra) contending that a Uniform National Policy for gochar land is being contemplated by Government of India. Mr. Mishra submitted that under Annexure-3&4, representations were submitted to O.PNo.4 and the Board of Revenue (O.P.No.2) but it yielded no result. Thus, by referring to the decisions in Pakur Jagran Manch and Jagpal Singh (supra), Mr. Mishra finally contends that the directions and observations contained therein have not been scrupulously followed by the local administration while handing over the gochar land and other lands of the deities for which statutory approval/sanction is required.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">6. Mr. Mohanty, learned ASC contended that there has been no illegality committed by O.P.Nos.3&4 while dereserving the gochar land and handing it over to O.P.No.5 for construction of the cement unit. It is further contended that necessary permission, such as, clearance from the State Environment Impact Assessment Authority (SEIAA) after purchase of the schedule land has been obtained by O.P.No.5. The learned counsel for O.P.No.5 strongly objected to the allegations of the Petitioner and submitted that necessary approval was obtained from O.P.No.3 vide Annexure-C/5 with regard to purchase of land having been allowed by virtue of Section 38(B) of the OLR Act and that apart, permission from different authorities, like State Pollution Control Board, Orissa (SPCB) in terms of Section 21 of Air (P&CP) Act, 1981 and Section 25 of Water (P&CP) Act, 1974 under Annexure-D/5 and consent for establishment of the unit vide Annexure-B/5; permission from the SEIAA vide Annexure-E/5; and also permission of the Director of Factories and Boilers, Orissa under Annexure-F/5 have been obtained. It is further apprised to the Court that the land after conversion was recorded in the name of O.P.No.5 with the ROR issued vide Annexure-G/5. It is lastly contended on behalf of O.P.No.5 that transfer vis-à-vis the lands of the deities is pending consideration before the Commissioner of Endowments in O.A.No.28 of 2019 under Section 19 of the Orissa Hindu Religious Endowments Act (in short 'the OHRE Act') and as such, no illegality has been committed and in the meantime, the Marfatdars and other villagers have agreed and received an amount of Rs.6,08,901/- paid through cheque for renovation of village temple at Muraripur. Finally, it is contended by the learned counsel for O.P.No.5 that for the self-same cause of action, a matter was carried to the National Green Tribunal and therefore, the Petitioner should not be permitted to reagitate it. A copy of the order dated 18th December, 2019 (Annexure-A/5) of the National Green Tribunal in O.A. No.12 of 2015 is referred to while contending that the present litigation should not be entertained which would result in abuse of process of law.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">7. On a bare perusal of Annexure-A/5, the Court finds that the dispute involving O.P.No.5 has been a subject matter of adjudication by the National Green Tribunal which was at the instance of the Petitioner and in that proceeding by order dated 23rd September, 2019, a Committee comprising of representatives from the Regional Office of CPCB, SPCB and SEIAA, Orissa was constituted to inspect the project and verify the allegations and to submit a report. In that case, the Petitioner had alleged violation of the conditions of environmental clearance by O.P.No.5. Admittedly from Annexure-G/5, it would appear that the schedule land stands recorded with O.P.No.5 and in that respect, ROR has been issued. From the counter affidavit of O.P.No.5 and looking at Annexures-B/5 to F/5, it further appears that necessary permission has been obtained from different statutory bodies for the purpose of establishment of the unit. As regards the lands of the deities, it has been brought to the notice of the Court that the permission to sale it and issuance of no objection certificate is pending decision before the Commissioner of Endowments in O.A. No.28 of 2019 which is revealed from Annexure-J/5 series. In fact, one more writ petition in W.P.(C) PIL No.26587 of 2017 had been filed earlier involving O.P.No.5 which was disposed of by order dated 22nd March, 2021 considering the fact that the matter is subjudice in O.A. No.28 of 2019 for permission and grant of no objection certificate in accordance with Section 19 of the OHRE Act which is stated to be still pending disposal. In such view of the matter, there is nothing on record to show that O.P.No.5 bypassed any statutory requirements, rather, it seems to have obtained the necessary permission/sanction under Annexure-B/5 to F/5 and furthermore, the proceeding with regard to the property of the deities, it is awaiting decision by the Endowment Commissioner, who had appeared and filed a counter affidavit in W.P.(C) PIL No.26587 of 2017. Against the aforesaid background of facts, the Court does not find any violation apparent on the face of record to hold that O.P.No.5 is guilty thereof.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">8. The next contention of the Petitioner is regarding illegal conversion of gochar land without following the provisions of OGLS Act and its transfer in favour of O.P.No.5. The Petitioner alleged that the gochar plots were converted and kisam was changed fraudulently to facilitate the transfer in favour of O.P.No.5. No doubt, the Apex Court in Pakur Jagran Manch (supra) concluded that dereservation of any Government land earmarked as gochar should only be under exceptional circumstances and for valid reasons and therefore, any attempt either to illegally convert the same or its encroachment should be resisted and firmly dealt with. <b>Similarly in Jagpal Singh (supra), the Apex Court came down heavily on encroachment of land belonging to GP which was perpetuated in collusion with the local officials and directed that even if permanent structures have been raised on such land, the same shall have to be removed and any regularization of such illegality must not be permitted and the action by the State Government in that respect was held to be without jurisdiction. The above proposition is meant to preserve the gochar land for the purpose of grazing and common use by the villagers and when any such dereservation is required, the direction has to be strictly followed. </b>In the instant case, it is only alleged by the Petitioner that conversion was made illegally without compliance of the provisions of OGLS Act. The essence of the argument is that in collusion with the officials of the local administration, the kisam of gochar plots were changed and then transferred to O.P.No.5. There is no detailed information shared by the Petitioner to satisfy the Court as to the extent of land recorded as gochar and how much has been dereserved for industrial and allied purpose. If there is no surplus gochar land available, then there may be a concern for the local administration. The Petitioner did not share the details of the gochar plots and extent thereof at least to make out a prima facie to show that the land left out after acquisition is not sufficient to meet the demands of the local villagers and therefore, dereservation should not have been permitted. The Petitioner simply alleged that illegality has been committed and the local administration secretly changed the kisam of gochar plots so that it could ultimately be transferred in favour of O.P.No.5. A process has been followed for the purpose of dereservation under the provisions of the OGLS Act and Rules and finally, the record of right was corrected. In order to examine the grievance and complaint on illegal acquisition and possession of the land in question by O.P.No.5 and proceed further, the Court requires some material to satisfy itself of the need of an enquiry. Rather, O.P.No.5 appears to have obtained required statutory permission and sanction of the authorities under Annexure-B/5 to F/5. Thus, for the foregoing reasons the Court reaches at a conclusion that there is no need of any directions issued requiring its indulgence in the matter.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">9. Accordingly, it is ordered.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">10. In the result, the writ petition stands dismissed.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(R.K. Pattanaik) Judge (Dr. S. Muralidhar) Chief Justice TUDU</div>Claim for Commonshttp://www.blogger.com/profile/06082132405339033351noreply@blogger.com0tag:blogger.com,1999:blog-5162401328122846212.post-80234419779881725212022-08-26T12:58:00.001+05:302022-08-26T12:58:45.864+05:30NGT in Rasulpur Dana Welfare Society vs. WB Pollution Control Board & Ors. [01.08.2022]<div style="text-align: center;">BEFORE THE NATIONAL GREEN TRIBUNAL </div><div style="text-align: center;">EASTERN ZONE BENCH,
KOLKATA </div><div style="text-align: center;"><br /></div><div><div style="text-align: center;">ORIGINAL APPLICATION No.108/2021/EZ </div><div style="text-align: justify;"><br /></div><div style="text-align: center;">IN THE MATTER OF: </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Rasulpur Dana Welfare Society </div><div style="text-align: justify;">Through its President </div><div style="text-align: justify;">Having its registered office at </div><div style="text-align: justify;">Village-Baidyadanga, P.O.-Rasulpur, </div><div style="text-align: justify;">District-Purba Bardhaman-713151
<span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span> ....Applicant(s) </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Versus </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">1. West Bengal Pollution Control Board
Through the Chairman,
Paribesh Bhawan, 10A, Block-LA, Sector-III,
Bidhannagar, Kolkata-700106 </div><div style="text-align: justify;">2. The Panchayat Pradhan
Nimo-I, Memari-1, Purba Bardhwan-713151 </div><div style="text-align: justify;">3. District Magistrate,
Purba Bhardhaman-713101 </div><div style="text-align: justify;">4. The Central Pollution Control Board
Through the Chairman,
Paribesh Bhawan, Maharshi Valmiki Marg,
East Arjun Nagar, Vishwas Nagar,
Shahdara, New Delhi-110032 </div><div style="text-align: justify;">5. The Block Land and Land Reforms officer,
Memari-1, Purba Bhardhaman-713146 </div><div style="text-align: justify;">6. District Land and Land Reforms Officer, Rajbari,
Purba Bhardhaman-713101
1 </div><div style="text-align: justify;">7. Parbati Ghosh,
Daughter of Nitya Gopal Ghosh
Village Baidyadanga, Rasulpur,
Burdawan-713151 </div><div style="text-align: justify;">8. Haru Ghosh,
Village Baidyadanga, Rasulpur,
Burdawan-713151 </div><div style="text-align: justify;">9. Anukul Biswas,
Village Baidyadanga, P.O. Rasulpur,
P.S Memari, District-Burdawan-713151 </div><div style="text-align: right;">....Respondent(s) </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">COUNSEL FOR APPLICANT:
Ms. Paushali Banerjee, Advocate </div><div style="text-align: justify;">COUNSEL FOR RESPONDENTS:
Mr. Dipanjan Ghosh, Advocate for R-1, </div></div><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><div><div style="text-align: justify;">Mr. Sibojyoti Chakraborty, Advocate for R-3, 5 & 6, </div></div></blockquote></blockquote></blockquote><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><div><div style="text-align: justify;">Mr. Rajib Ray, Advocate for R-4, </div></div></blockquote></blockquote></blockquote><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><div><div style="text-align: justify;">Mr. Somnath Ghosh, Advocate a/w
Ms. Tapti Sarkar, Advocate for R-7 & 8, </div></div></blockquote></blockquote></blockquote><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><div><div style="text-align: justify;">Mr. Sandip Ghosh, Advocate a/w
Mr. Partha Sarkar, Advocate & </div></div></blockquote></blockquote></blockquote><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><div><div style="text-align: justify;">Ms. Mousaumi Chatterjee, Advocate for R-9 </div></div></blockquote></blockquote></blockquote></blockquote><div><div style="text-align: justify;"><br /></div><div style="text-align: center;">JUDGMENT</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">PRESENT:</div><div style="text-align: center;"><br /></div><div style="text-align: left;">HON'BLE MR. JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) </div><div style="text-align: left;">HON'BLE MR. SAIBAL DASGUPTA (EXPERT MEMBER)</div><div style="text-align: left;"><br /></div><div style="text-align: justify;">__________________________________________________________________ </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Reserved On: - 27th July, 2022 </div><div style="text-align: justify;">Pronounced On: - 1st August, 2022</div><div style="text-align: justify;"> __________________________________________________________________</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">1. Whether the Judgment is allowed to be published on the net? Yes</div><div style="text-align: justify;">2. Whether the Judgment is allowed to be published in the NGT Reporter? Yes </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Heard the learned Counsel for the parties and perused the documents on record.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">2. This Original Application has been filed by the Applicant alleging that Respondent Nos. 7, 8 & 9 are destroying the two ponds in the Dag No. 463 and Dag No. 25, J.L. No. 135, Mouza- Baidyadanga under Memari-I Block, Rasulpur in Purba Bardhaman and are converting the two ponds into garbage dumps. It is further alleged that unauthorized and illegal constructions are being raised by them in collusion with Respondent No. 2, the Panchayat Pradhan Nimo-1, Memari-I, Purba Bardhaman, destroying the two ponds.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">3. Notices were issued to the Respondents and respondents have filed their affidavits.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">4. A Report dated 10.12.2021 has been filed by the Block Land and Land Reforms Officer, Purba Bardhaman, Memari-I, Memari, Purba Bardhaman along with the affidavit dated 14.12.2021 of the Respondent No.6, Additional District Magistrate & District Land and Land Reforms Officer, Purba Bardhaman. This letter which is addressed to the Additional District Magistrate and District Land and Land Reforms Officer, Purba Bardhaman, confirms that eight persons had tried to fill up the Plot No. 463 of Mouza-Baidyadanga, J.L. No. 135 and FIR's have been lodged against them. It was also noted in the report that on enquiry of Plot No. 25 of Mouza- Baidyadanga, J. L. No. 135, it has been found that one Anukul Biswas was attempting to fill the western side of the pond and notice had been issued to him earlier on 04.07.2016 to stop such work. It is also stated that there is a Kachcha Road on the western side of the pond and the remaining area has been filled with garbage and bushes. This confirms the allegations made by the Applicant. However, the report of the Block Land and Land Reforms Officer, Purba Bardhaman, was scanty in information in as far as the total area of the pond; how much of the area has been filled up with garbage and bushes and how much area has been utilized for construction of Kachcha Road is not stated. The area encroached is not clearly mentioned. Since, this report did not disclose the complete facts and also whether penalty/fine had been imposed on the encroachers over the waterbody and whether encroachers have been removed, the Tribunal directed the District Magistrate, Purba Bardhaman to file a fresh affidavit.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">5. In response, affidavit dated 24.05.2022 has been filed by Respondent No.5, District Magistrate, Purba Bardhaman, stating therein that in pursuance of the letter of Block Land & Land Reforms Officer, Memari-I, an enquiry was conducted by the Revenue Inspector and as per the enquiry report a notice was issued to Anukul Biswas (Respondent No.9) to stop filling the pond in question. Another enquiry was conducted on 31.03.2022 and enquiry report dated 01.04.2022 has been submitted, from which it is seen that the total area of the Plot No.25 is 0.44 acres; a waterbody exists on 0.36 acres and 0.06 acres of the area at the eastern side of the pond is filled up with earth and is used as 'Pukur Par' and road, and 0.02 acres of area on the western side is filled up and is being used as a Kachha road. It is stated that the recorded Raiyat namely Amit Kumar Ganguly, Ashim Kumar Ganguly, Ashish Kumar Ganguly and Asit Kumar Ganguly were issued notices under Section 4C (5) of the West Bengal Land Reforms Act, 1955 dated 17.05.2022, for restoration of the waterbody but the Revenue Inspector was informed that the recorded raiyats had already sold the land to others namely Sujit Ghosh, Pankaj Gayan and Pratima Biswas (since deceased) who were issued notices under Section 4C (5) of the West Bengal Land Reforms Act, 1955 dated 18.05.2022, for restoration of the waterbody within 2 days. Another enquiry was conducted by the Revenue Inspector, Nimo-I on 19.05.2022 and as informed by the Additional District Magistrate & District Land & Land Reforms Officer, Purba Bardhaman vide his letter dated 21.05.2022, the total area of Plot No.463 is 0.61 acres out of which 0.21 acres has been filled up and it is found that there were six pucca constructions. It is stated that: -</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(a) The recorded raiyats of Khatian No.539 of the said plot namely Bani Chandra W/o Sujit Chandra has a pucca house over 1,000 sq. ft. area.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(b) The recorded raiyat of Khatian No. 756, Uttam Das Gupta S/o Dijendralal Dasgupta has one pucca house over 858 sq. ft. area.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(c) A two storied building was found constructed over 2659 sq. ft. area made by one Monojit Ghosh but he is not a recorded raiyat.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(d) One Gouranga Ghosh, Biplab Bairaggya and Dibakar Ghosh S/o Haru Ghosh who were also not recorded raiyats had made pucca houses over the area of 1365 sq. ft., 1159 sq. ft. and 858 sq. ft. respectively.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">(e) In the North-Eastern side there is also a road encroachment over 342 sq. ft. area and garbage was found covering an area of 858 sq. ft. and the remaining 0.40 acre area was found to be a waterbody filled with water hyacinths.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">6. It is also stated by the District Magistrate that proceedings have been started against some persons for allegedly filling up the waterbody known as 'Shib Pukur' vide Memari P.S. F.I.R. No.511/2016 dated 13.08.2016 under the provisions of Section 4D of the West Bengal Land Reforms Act, 1955 and in the said case Charge sheet has already been submitted and the case is pending for adjudication in the court of Judicial Magistrate, 2nd Court, Bardhaman. It is further stated that notices were issued to:</div><div style="text-align: justify;">1) Sri Dibakar Ghosh S/o Haradhan Ghosh;</div><div style="text-align: justify;">2) Sri Uttam Dasgupta;</div><div style="text-align: justify;">3) Smt. Bani Ghosh;</div><div style="text-align: justify;">4) Sri Parbati Ghosh S/o Nityagopal Ghosh;</div><div style="text-align: justify;">5) Sri Ramesh Ghosh;</div><div style="text-align: justify;">6) Sri Samaresh Ghosh;</div><div style="text-align: justify;">7) Sri Gouranga Ghosh and</div><div style="text-align: justify;">8) Smt. Shyamali Boiragi W/o Biplab Boiragi They were directed to restore the waterbody of plot no.463, Mouza-Baidyadanga, J.L. No.135 within 7 days.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">7. Along with the affidavit of the District Magistrate, Purba Bardhaman, a letter dated 23.05.2022 of the Block Land & Land Reforms Officer, Memari-I has been filed as Annexure-R-1, wherein it is stated that in the proceedings under Section 4C (5) of the West Bengal Land Reforms Act, 1955, Anukul Biswas, Pankaj Gayen and one Sujit Ghosh appeared before the said authority in the proceedings and submitted a deposition they will restore the actual character of the land within 7 days. Accordingly, time of 7 days was granted to them in the proceedings under Section 4C (5) of the West Bengal Land Reforms Act, 1955.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">8. Thus, from the documents on record, we find that the admitted position that emerges is that the waterbody recorded in Dag No.463 and Dag No.25, J.L. No.135, Mouza Baidyadanga, under Memari-I Block, Rasulpur, Purba Bardhaman have been illegally occupied by the aforesaid persons.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">9. The Respondent No.7, Parbati Ghosh, in her affidavit dated 05.01.2022 has stated that although the classification of the land of the two ponds is mentioned as 'Pukur' in the Land Revenue Record, the ponds are unusable for fish farming or for aquatic animals but that the ponds are not breeding ground of mosquitoes and flies.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">10. The Respondent No.8, has also filed a counter-affidavit dated 25.04.2022 sworn by one Dibakar Ghosh also known as Har Ghosh S/o Taraknath Ghosh stating therein that he is neither the owner nor in possession of the land in question and he has no connection with regard to the Dag No.463 and Dag No.25, Mouza-Baidyadanga, under Memari-I Block, Rasulpur, Purba Bardhaman. Though in paragraph 6 of his affidavit he admits that there are ponds in Dag No.463 and Dag No.25, J.L. No.135, Mouza-Baidyadanga, under Memari-I Block, Rasulpur, Purba Bardhaman, though he has denied that the said ponds have been filled with garbage.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">11. It is however, surprising that in paragraph-4, II of his affidavit the deponent, Respondent No.8, has stated that since his birth he used to reside at the addresses mentioned in the cause title permanently which is other than the said plot of land Dag No.463, Mouza-Baidyadanga, J.L. No.135, Khatian No.148, Memari.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">12. The Respondent No.9 in his affidavit dated 15.07.2022 has stated that he is a co-owner of the property, J.L. No.135, Plot No.25, total area of land 44 Satak, Nature of land is Pukur and this land had been purchased by his late wife Pratima Biswas. It is also stated that in the C.S. Record of Rights, Dag/Plot No.25 is recorded as 'Sona' although in the Land Revenue Records of Rights the same land is recorded as 'Pukur'.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">13. From the above, analysis and scrutiny of records, we find that there is absolutely no dispute that the plots in question are recorded as 'Pukur' (waterbody) in the Land Revenue Records which is borne out from the documents filed as Annexure-A to the original application as well as the averments of Respondent Nos.7, 8 & 9, and Plot No.463 is also recorded as 'Pukur'. The Report of the Block Land & Land Reforms Officer clearly establishes that the Respondent No.9 had attempted to fill up the Western side of the pond and he was issued a notice on 04.07.2016 to stop the same. It is also established that part of the Plot Nos.463 and 25 have been converted to a Kachcha road on the Western side and the remaining area has been filled up with garbage and bushes.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">14. One more affidavit dated 26.07.2022 has been filed by the District Magistrate & Collector, District Purba Bardhaman, wherein it is stated that the Block Land & Land Reforms Officer Memari-I vide his letter dated 21.07.2022 informed the District Magistrate, Purba Bardhaman that as per the enquiry report dated 27.06.2022 submitted by Revenue Inspector, Nimo-I, with respect to Plot No.25, Mouza-Baidyadanga, J.L. No.135, that presently the Plot No.25, has been restored to its actual classification i.e. 'Pukur'. It is also stated that with respect to the Plot No.463, Mouza-Baidyadanga, J.L. No.135, the Block Land & Land Reforms Officer, Memari-I, Bardhaman had vide letter dated 21.07.2022 inter alia informed the District Magistrate, Purba Bardhaman that the total area of Plot No.463 is 0.61 acres, out of which 0.21 acres has been filled up and six pucca constructions were found to have been made thereon and in the North-Eastern side there is also an encroachment of over 342 sq. ft. area and some garbage found over 858 sq. ft. area and the rest 0.40 acres area is filled with water but the same is covered with water hyacinth. It is further stated that from the previous records as available in the office it appears that after getting complaint of illegal filling up of waterbody an enquiry was conducted by the Revenue Inspector on 12.08.2016, over the said plot of land and as per report of the Revenue Inspector a notice for restoration of waterbody was served upon eight persons vide Memo No.752, dated 17.08.2016, and thereafter, as per provisions of Section 4D of the West Bengal Land Reforms Act, 1955 First Information Reports (F.I.Rs.) have been lodged with the Officer-in-Charge, Memari Police Station vide office memo No.808-814 dated 30.08.2016 and presently the said case is pending adjudication in the Trial Court.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><b>15. The Hon'ble Supreme Court in (2011) 11 SCC 396, Jagpal Singh & Ors. vs. State of Punjab & Ors., in Paragraph 16, 17, 18 & 22 has held as under: -</b></div></div><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><div><div style="text-align: justify;"><b><br /></b></div></div><div><div style="text-align: justify;"><b>"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) 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.</b></div></div><div><div style="text-align: justify;"><b>17. 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.</b></div></div><div><div style="text-align: justify;"><b>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.</b></div></div><div><div style="text-align: justify;"><b>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."</b></div></div></blockquote><div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">16. In (2019) 20 SCC 581, Jitender Singh vs. Ministry of Environment & Ors., the Hon'ble Supreme Court in Paragraph 23 has given the following directions: -</div><div style="text-align: justify;"> </div></div><blockquote style="border: none; margin: 0 0 0 40px; padding: 0px;"><div><div style="text-align: justify;">"23. For the reasons stated above, we allow the appeal and set aside the impugned order passed by the NGT. The allotment of all waterbodies (both ponds and canals), including Khasra Nos.552 and 490 to Respondent No.6, or any other similar third party in village Saini, tehsil Dadri, district Gautam Budh Nagar is held to be illegal and the same is hereby quashed. Since this Court has on 15.07.2019 already directed the parties to maintain status quo, Respondent Nos.1 to 5 shall restore, maintain and protect the subject-waterbodies in village Saini. Respondents are further directed to remove all obstructions from the catchment area through which natural water accumulates in the village ponds, all within a period of three months."</div></div></blockquote><div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">17. In (2001) 6 SCC 496, Hinch Lal Tiwari vs. Kamala Devi & Ors., the Hon'ble Supreme Court held as under: -</div></div><blockquote style="border: none; margin: 0 0 0 40px; padding: 0px;"><div><div style="text-align: justify;">"It is important to notice that the material resources of the community like forests, tanks, ponds, hillock, mountain etc. are nature's bounty. They maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality life which is the essence of the guaranteed right under Article 21 of the Constitution. The Government, including the Revenue Authorities i.e. Respondents 11 to 13, having noticed that a pond is failing in disuse, should have bestowed their attention to develop the same which would, on one hand, have prevented ecological disaster and on the other provided better environment for the benefit of the public at large. Such vigil is the best protection against knavish attempts to seek allotment in non-abadi sites. For the aforementioned reasons, we set aside the order of the High Court, restore the order of the Additional Collector dated 25-2-1999 confirmed by the Commissioner on 12-3-1999. Consequently, Respondents 1 to 10 shall vacate the land, which was allotted to them, within six months from today. They will, however, be permitted to take away the material of the houses which they have constructed on the said land. If Respondents 1 to 10 do not vacate the land within the said period the official respondents i.e. Respondents 11 to 13 shall demolish the construction and get possession of the said land in accordance with law. The State including Respondents 11 to 13 shall restore the pond, develop and maintain the same as a recreational spot which will undoubtedly be in the interest of the villagers. Further it will also help in maintaining ecological balance and protecting the environment in regard to which this Court has repeatedly expressed its concern. Such measures must begin at the grass- root level if they were to become the nation's pride."</div></div></blockquote><div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><b>18. The Hon'ble Supreme Court in (2018) 13 SCC 390, National Institute of Medical Science University Rajasthan & Anr. vs. State of Rajasthan & Ors., has approved the view taken by the Hon'ble Supreme Court in Jagpal Singh (supra). Paragraphs 41, 42 & 43 of the judgment which read as under: -</b></div></div><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><div><div style="text-align: justify;"><b><br /></b></div></div><div><div style="text-align: justify;"><b>"41. This view was followed and endorsed in Jagpal Singh in the following words:</b></div></div><div><div style="text-align: justify;">"In M.I. Builders (P) Ltd. v. Radhey Shyam Sahu the Supreme Court ordered restoration of a park after demolition of a shopping complex constructed at the cost of over Rs. 100 crores.</div></div><div><div style="text-align: justify;">In Friends Colony Development Committee v. State of Orissa 1 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 (2004) 8 SCC 733 actually being used for a public purpose of the village e.g. running a school for the villagers, or a dispensary for them.</div></div><div><div style="text-align: justify;">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."</div></div><div><div style="text-align: justify;"><br /></div></div><div><div style="text-align: justify;">42. Keeping in mind the view expressed by this Court in these and other decisions, we also direct the demolition of the unauthorized construction by or on behalf of NIMS on Khasra No. 526. The demolition should be carried out by the Jaipur Development Authority with the assistance of the State Government and the Collector of Jaipur District on or before 30th November, 2017. The Director General of Police of Rajasthan is directed to render all necessary assistance in the process of demolition. The cost of demolition and removal of rubble etc. will be at the expense of NIMS. Any pending application made by NIMS for compounding the unauthorized construction or regularizing it stands superseded in view of our decision.</div></div><div><div style="text-align: justify;"><br /></div></div><div><div style="text-align: justify;">43. We are giving these peremptory time bound directions in view of the fact that the learned Single Judge felt it appropriate, while dismissing the writ petitions filed by NIMS, to grant interim relief limited to only 7 days. More importantly, we are of opinion that the possibility of water being now made available to Jaipur City in due course of time takes far greater precedence over the interests of NIMS and those associated with it."</div></div></blockquote><div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">19. For reasons aforesaid, we dispose of the original application and direct the District Magistrate, Purba Bardhaman to take all steps for removal of encroachments from Plot No.463 and Plot No.25, J.L. No.135, Mouza-Baidyadanga, under Memari-I Block, Rasulpur, Purba Bardhaman within one month and restore the area of 0.61 acres of the Plot No.463 and area 0.44 acres of the Plot No.25, J.L. No.135, under Memari-I Block, Rasulpur, Purba Bardhaman to its original form as waterbody and take steps for removal of water hyacinths and file affidavit of compliance within three months i.e. by 31st October, 2022.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">20. With the aforesaid directions, the Original Application No.108/2021/EZ is disposed of.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">21. There shall be no order as to costs.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">.............................. B. AMIT STHALEKAR, JM<span> </span><span> </span><span> </span> <span> </span>.............................. SAIBAL DASGUPTA, EM </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Kolkata </div><div style="text-align: justify;">August 01, 2022 </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Original Application No.108/2021/EZ</div></div>Claim for Commonshttp://www.blogger.com/profile/06082132405339033351noreply@blogger.com0tag:blogger.com,1999:blog-5162401328122846212.post-74727379926348068682022-07-21T10:57:00.001+05:302022-07-21T15:25:06.819+05:30J&K: Collector directed to remove encroachment on Shamilat/Kahcharia land [23.06.2022]<div style="text-align: center;">IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
AT SRINAGAR </div><div style="text-align: center;">WP(C) No. 1332/2022 </div><div style="text-align: center;">CM No. 3171/2022 </div><div style="text-align: center;"><br /></div><div style="text-align: center;">Nissar Ahmad Dar. <span> </span><span> </span><span> </span><span> </span><span> <span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span> </span><span> </span>...Petitioner(s) </div><div style="text-align: justify;"><span> </span><span> </span><span> </span><span> </span>Through: Mr. M. Ayoub, Advocate. </div><div style="text-align: center;">Vs. </div><div style="text-align: center;">UT of JK and Ors.<span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span> ...Respondent(s) </div><div style="text-align: justify;"><span> </span><span> </span><span> </span>Through: None </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;"> CORAM:
HON'BLE MS JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE </div><div style="text-align: justify;"><br /></div><div style="text-align: center;">ORDER</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">23.06.2022 </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">In the instant petition, the petitioner herein has sought direction upon the respondents to take necessary steps for removal of encroachment over the Shamilat/Kahcharia land falling under Survey No. 41, situated at Chek-i- Aziz Shah, Shopian and the respondents be further directed to take all the necessary steps for preservation of above said Shamilat/Kahcharia land and omission of Survey No. 41 from the records illegally done by the subordinate revenue officials be forthwith corrected and also the original status of the above said Shamiliat/Kahchaira land be restored by proper Survey Number, i.e., Survey No. 41.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">The petitioner in the Para 9 of the writ petition has also stated that the direction of the Hon'ble Supreme Court has been formulated and brought into the existence by the authorities of Union Territory of Jammu and Kashmir through Cabinet Decision dated 19.10.2011. The said Scheme is called "the Jammu and Kashmir Eviction of Unauthorized Occupants (from common land) Scheme, 2011.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">As per Government order bearing No. Rev/Lit/218 of 2011, dated 28.11.2011, the Deputy Commissioner of the concerned Districts shall identify the encroachments on common lands/non-partible Shamlat Lands, Kachrai Lands and lands meant for pathways, ponds, storing grains, water bodies, passages, cremation grounds and other common use of the people of the villages. The Deputy Commissioners have further been directed to prepare the list based on the information and also after identification of these illegal encroachments on lands mentioned, the concerned Revenue Officials shall start eviction of illegal occupation of such land under the provisions of Jammu and Kashmir Land Revenue Act, Samvat 1996.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Learned counsel for the petitioner states that he would be satisfied if the writ petition of the petitioner is disposed of with the direction to the respondents to take necessary steps for removal of encroachment over the Shamilat/Kahcharia land falling under Survey No. 41 situated at Chek-i-Aziz Shah, Shopian in terms of the scheme for eviction of encroachments on common land issued vide Government order No. Rev/Lit/218 of 2011, dated 28.11.2011,<b> which is based on the judgment dated 28.01.2011, passed in the Civil Appeal No. 1132/2021 titled Jagpal Singh Vs. State of Punjab and Others.</b></div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">Be that as it may, respondent No. 5 [Deputy Commissioner (District Collector), Shopian] is directed to take necessary steps for removal of encroachment over the Shamilat/Kahcharia land falling under Survey No. 41 situated at Chek-i-Aziz Shah, Shopian in strict adherence to the scheme for eviction of encroachments on common land issued vide Government order No. Rev/Lit/218 of 2011, dated 28.11.2011. The respondent No. 5 shall complete the exercise within a period of four weeks from the date copy of this order is served upon him by the petitioners The writ petition is disposed of along with connected CM.</div>Claim for Commonshttp://www.blogger.com/profile/06082132405339033351noreply@blogger.com0tag:blogger.com,1999:blog-5162401328122846212.post-58967192511184489432022-07-18T18:35:00.000+05:302022-07-18T18:35:21.734+05:30NGT: Conservation & environmental protection an inseparable part of right to life [05.07.2022]<div style="text-align: center;">BEFORE THE NATIONAL GREEN TRIBUNAL </div><div style="text-align: center;">CENTRAL ZONE BENCH, BHOPAL </div><div style="text-align: center;"><br /></div><div style="text-align: center;">(Through Video Conferencing) </div><div style="text-align: center;"><br /></div><div style="text-align: center;">Original Application No.48/2022 (CZ) </div><div style="text-align: justify;"><br /></div><div style="text-align: center;">Purushottam Agrwal & 3 Ors. <span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span>Applicant (s) </div><div style="text-align: center;">Versus </div><div style="text-align: center;">State of Madhya Pradesh & Anr. <span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span><span> </span>Respondent(s) </div><div style="text-align: justify;"><br /></div><div><div style="text-align: justify;">Date of hearing: 05.07.2022 </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER </div><div style="text-align: justify;"><span> </span><span> </span><span> </span>HON'BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER </div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">For Applicant(s): Mr. Abhimanyu Shrivastav, Adv. </div><div style="text-align: justify;">For Respondent(s) : None </div><div style="text-align: justify;"><br /></div><div style="text-align: center;">ORDER</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">1. Article 21 of the Constitution of India protects not only the human rights but also casts an obligation on human beings to protect and preserve species becoming extinct. Conservation and protection of environment is an inseparable part of right to life. In M. C. Mehta v. Kamal Nath and Others (1997) 1 SCC 388, the Court enunciated the doctrine of "public trust", the thrust of that theory is that certain common properties such as rivers, seashores, forests and the air are held by the Government in trusteeship for the free and unimpeded use of the general public. The resources like air, sea, waters and the forests have such a great importance to the people as a whole, that it would be totally unjustified to make them a subject of private ownership. The State, as a custodian of the natural resources, has a duty to maintain them not merely for the benefit of the public, but for the best interest of flora and fauna, wildlife and so on. The doctrine of 'public trust' has to be addressed in that perspective.</div><div style="text-align: justify;"><br /></div><div style="text-align: justify;">2. Issue raised in this application has genesis in O.A. No. 23 of 2021 titled as "Swami Narhariyanand Sarovar Jirnodhar Samiti vs. State of M.P. & Ors" whereby and where under on 31.08.2021, the matter was taken up by this Tribunal and disposed of in the following manner:</div><div style="text-align: justify;"><br /></div></div><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><div><span style="font-family: "Times New Roman", Times, serif; font-size: 16.9px;"><div style="text-align: justify;">1. "Issue raised in this original application is the encroachment of Talab, Natural Water Body/Pond popularly known as Swami Narhariyanand Sarovar, which is situated in village Saikheda, Tehsil and district Narsinghpur, (M.P.).</div></span></div><p id="p_6" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">2. The Nazri Aksh (current map) of Swami Narhariyanand Sarovar/ Talab indicate that, Khasra/survey no. 456 measuring area 0.526 hectare, Khasra/survey no. 457 measuring area 0.291 hectare and Khasra/survey no. 458/1 measuring area 5.953, total area admeasuring 6,7770 hectare (which is equivalent to 16.72 Acres), is a natural body/bund, of this Sarovar, which is in its natural state.</p><p id="p_7" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">3. The matter was taken up on 28.05.2021 and this Tribunal constituted a committee in a following manner :- </p></blockquote><p id="p_5" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"></p><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><p id="p_7" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">"9. We deem it just and proper to call a report on the matter in issue in present application, from a Joint Committee consisting of:-</p></blockquote><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"> i. District Collector, Narsinghpur, Bhopal </blockquote></blockquote><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><div>ii. Municipal Corporation, Narsinghpur </div></blockquote></blockquote><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><div>iii. Central Pollution Control Board or its representative </div></blockquote></blockquote><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><div>iv. Madhya Pradesh Pollution Control Board or its representative </div></blockquote></blockquote><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><div><p id="p_8" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">10. The Committee is directed to visit the place and submit the factual and action taken report within six weeks. The State PCB will be the nodal agency for coordination and logistic support.</p></div></blockquote><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><div><p id="p_10" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">11. The report in the matter be filed by the Committee by email at ngtczbbho-mp@gov.in preferably in the form of searchable PDF/OCR Support PDF and not in the form of Image PDF."</p></div></blockquote></blockquote><div><p id="p_9" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"></p></div><div><p id="p_11" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"></p></div><blockquote style="border: none; margin: 0 0 0 40px; padding: 0px;"><div><p id="p_12" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">4. In compliance thereof, the Joint Committee consisting District Collector, Narsinghpur, Bhopal, Representative of Madhya Pradesh Pollution Control Board, Representative of Central Pollution Control Board and Representative of Municipal Corporation has submitted factual and action taken report which is as follows:- </p></div></blockquote><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><div><p id="p_12" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">"FIELD OBSERVATIONS:-</p></div><div><p id="p_13" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">Swami Narhariyanand Sarovar is a natural water body at khasra/survey no.456 measunig area 0.526 hectare, khasra/survey no.457 measuring area 0.291 hectare and khasra/survey no.458/1 measuring area 5.953 hectare, total area admeasuring 6.7770 hectare (which is equivalent to 16.72 Acres). The water body is surrounded by dense residential area. There is residential encroachment on the West and North part of the Swami Narhariyanand Sarovar and the domestic waste water generated from these houses is directly discharged into the Swami Narhariyanand Sarovar. Other than the direct discharge from the above houses; 02 small drains also meet in Sarovar, carrying domestic waste water from the nearby residential-cum-commercial area. The map of Swami Narhariyanand Sarovar is enclosed. Swami Narhariyanand Sarovar is a holy place for the people. There is Samadhi of Swami Narhariyanand in the middle of the pond. Being having religious importance people walk round the pond (Parikrama) for holy purpose. The path of Parikrarna has also been obstructed by encroachments.</p></div><div><p id="p_14" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">There are 73 encroachments identified which has been ordered to be removed by the Tahsildar Saikheda. The Nagar Parishad Saikheda has also given notice to remove the encroachment. The latest status & list of encroachments is enclosed. Water Sampling The committee after surveying the site and drains meeting the Sarovar; carried out water sampling from 02 respective locations to assess the water quality of the Sarovar:</p></div></blockquote><div><p id="p_15" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"></p></div><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><div><p id="p_16" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">1. Mid of the Sarovar near Samadhi (GPS location: 22.9607874, 78.5767628 )</p></div><span style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">2. Near Tehsil Office before meeting Sarovar (GPS location: 22.9589697,78.5785498).</span><div><p id="p_18" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">The water analysis w.r.to pH, DO, BOD & Total Coliform report is as tabulated below:</p></div></blockquote><div><pre id="pre_3" style="font-size: 1em; line-height: 1.5em; overflow-wrap: break-word; padding: 20px; text-align: justify; white-space: pre-wrap; width: 700px;">Sl. Parameters Unit Mid of the Near Tehsil
No. Sarovar near Office before
Samadhi meeting
Sarovar
1 pH - 7.86 7.92
2 Dissolved Oxygen mg/l 7.8 5.2
3 BOD (3 days, 270C) mg/l 3.2 4.8
4 Total Coliform MPN/100ml 540 1100
</pre></div><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><div><p id="p_19" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">The analysis results show impact of domestic waste water being discharged into Swami Narhariyanand Sarovar from the nearby houses mostly of which are constructed as an encroachment at the bank of Swami Narhariyanand Sarovar. There is plenty of water in the Swami Narhariyanand Sarovar to dilute the domestic effluent but at the bank near Tehsil Office the quality of water is more polluted than middle of the pond. Detail analysis report is enclosed. Earlier Action Taken by Authorities i. The total encroachment is 73, which has been ordered to be removed by the Tehsildar Saikheda, the Nagar Parishad Saikheda has also given notice to remove the encroachment. In the appeal there is no relief to the extortionists. ii. The nature of the encroachment of the encroachers is basically residential, which has been built for the last 30-40 years, it also has a multi-storey building, removing the encroachment can also create a law and order situation. iii. M. P. Pollution Control Board Bhopal has imposed a penalty of Rs. 44.0 Lakhs on Nagar Parishad, Saikheda for non- compliance of MSW Rules 2016 and direct discharge into water bodies in compliance of directions given by Hon'ble NGT O.A No. 606/2018 dated 25.02.2020 & 02.07.2020. Copy of the notice given to Nagar Parishad Saikheda in this regard is enclosed.</p></div><div><p id="p_20" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">iv. Work for lying sewer line is under construction stage at Saikheda along with installation of Sewage Treatment Plant (STP) of 2.6 MLD capacities for the treatment of domestic waste water. Details of progress of STP is enclosed. Photographs along with coordinate recorded during inspection is enclosed.</p></div></blockquote><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><div><p id="p_21" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">Recommendations:-</p></div><div><p id="p_23" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">1. The local authority should expedite the work of STP construction and drain connectivity to ensure that no untreated effluent meet water bodies.</p></div><div><p id="p_24" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">2. District authority shall resolve the cases of identified encroachments per the law.</p></div><div><p id="p_25" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">3. To stop direct discharge of domestic waste water in Sarovar, local authority may arrange to shift the domestic outlet drain of households towards road side (proposed sewer line) to avoid further deterioration of the pond water.</p></div><div><p id="p_26" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">4. The local authority may provide in-situ bio-remediation to treat the effluent drains till the STP work is ongoing.</p></div><div><p id="p_27" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">5. A moving fountain may be installed in Sarovar to improve the dissolved oxygen."</p></div></blockquote><div><p id="p_22" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"></p></div><div><p id="p_28" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"></p></div><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><div><p id="p_29" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">5. Learned counsel appearing for the State Pollution Control Board has submitted that the authorities are taking legal action against unlawful encroachment of water bodies and 2.6 MLD capacity Sewage Treatment Plant is under construction and likely to be completed very soon and State Pollution Control Board shall ensure that there should not be any discharge of untreated water into the water bodies.</p></div><div><p id="p_30" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">6. Learned Counsel appearing for the applicant Shri Dharamveer Sharma has submitted that strong action should be initiated against the person who had made illegal encroachment on the public land or the water bodies. We accept the report of the joint committee and direct the authorities concerned that the recommendations made by the Joint Committee must be strictly observed. We further direct as follows -</p></div><div><p id="p_31" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">1. Respondents/authorities are directed that the sewage Treatment Plant (2.6 MLD capacity) which is under construction must be completed within a stipulated time.</p></div><div><p id="p_32" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">2. Respondents are directed to ensure that no untreated water/ sewage water/solid waste, be discharged into the waterbodies and in case it is found that waste water / garbage are being discharge into the waterbodies, the necessary legal action as well as calculation and realization of environmental compensation in accordance with the parameter laid down by the Principal Bench of this Tribunal must be realized, according to law.</p></div><div><p id="p_34" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">3. The illegal encroachment on the waterbodies as narrated in para 1 & 2 of the action taken and recommended at Para 2 in the clause of the recommendation must be acted upon and Collector, Narsingpur is directed to ensure the removal of the unlawful encroachment from the public land/waterbodies in accordance with the law within a time frame, say within six months.</p></div><div><p id="p_35" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">4. The State Pollution Control Board, M.P. is directed to proceed with in accordance of law to comply point number 3 of report with regard earlier Action Taken by the Authorities and realization of environmental compensation."</p></div></blockquote><div><p id="p_33" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"></p></div><div><p id="p_36" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"></p><p id="p_37" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">3. The revenue authorities initiated to remove the encroachment and the order as attached (Annexure-03) reveals that in the revenue case RCMS0036 vide order dated 01.02.2021, Nayak Tehsildar has issued notices and orders to remove the encroachments from Government land / water body Khasra no. 456, 457, 458/1. Aggrieved by the order an appeal no. RCMS0157/appeal/2020-2021 was filed and the Sub Divisional Officer, Revenue passed an order dated 30.03.2021, under Section 44 of Madhya Pradesh Land Revenue Act, 1959. The order reveals the facts that the matter was complained and placed before Hon'ble the Chief Minister of Madhya Pradesh and request was made to remove the encroachment from the water bodies/pond.</p><p id="p_38" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">4. In an another appeal no. 178/Appeal/2020-2021 the concerned Revenue Officer discloses the facts that the land in question is government land recorded as pond and the Appellant failed to produce any record/documents with regard to the ownership of the property. The land was demarcated previously by the revenue authorities and it was found that it is a matter of encroachment without any lawful authority.</p><p id="p_39" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">5. The receipt with regard to the deposit of any amount to the Municipal council does not create any right of ownership in favour of the depositor to any land, though the number and specification of the land has not been disclosed and this further does not create any right for transfer of any land which is recorded as state land to any other person without the authority of the state.</p><p id="p_40" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">6. The revenue record and copy of the Khasra reveals that the property Khasra no. as mentioned above is recorded as a public property/ in the name of the government and is in a nature of water bodies.</p><p id="p_41" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">7. The prayer is to issue directions to the authorities not to act arbitrarily or misinterpret the orders passed in O.A. No. 23 of 2021 (CZ).</p><p id="p_42" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">8. Hon'ble the Supreme Court of India in so many decisions had directed that the heart of the public trust is that it imposes limits and obligations upon Government agencies and their administrators on behalf of all the people and especially future generations. All the property which is vested in the state is indirectly managed by the local administration on the Principle of Public Trust. It does not mean that the local administration is at liberty or at the discretion to use it in own way. We have two things, sovereignty of the State and the doctrine of public trust. We have to make a balance between the two, though the State has every authority to utilize the land but Public Trust Doctrine says that the property of the public should be utilized for the public purposes and not for the private purposes. The water bodies, lake, air and land all these are the public properties and should be made available to all for maintaining the health and environment. This doctrine of public trust and precautionary measures were discussed in public interest litigation no. 87/ 2006; Bombay Environmental Action Group Vs. State of Maharashtra 2018 SCC online bombay 2680.2019(1) Bombay CRI and it was held as follows:-</p><blockquote id="blockquote_1" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">―Apex Court observed thus: ― "2. The Indian society has, for many centuries, been aware and conscious of the necessity of protecting environment and ecology. Sages and saints of India lived in forests. Their preachings contained in vedas, upanishads, smritis, etc. are ample evidence of the society's respect for plants, trees, earth, sky, air, water and every form of life. The main motto of social life is to live in harmony with nature. It was regarded as a sacred duty of everyone to protect them. In those days, people worshipped trees, rivers and sea which were treated as belonging to all living creatures. The children were educated by elders of the society about the necessity of keeping the environment clean and protecting earth, rivers, sea, forests, trees, flora, fauna and every species of life.‖ ―The ancient Roman Empire developed a legal theory known as the ―doctrine of the public trust‖. It was founded on the premise that certain common properties such as air, sea, water and forests are of immense importance to the people in general and they must be held by the Government as a trustee for the free and unimpeded use by the general public and it would be wholly unjustified to make them a subject of private ownership. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial exploitation to satisfy the greed of a few."</blockquote><p id="p_43" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">9. In the case of M.C. Mehta v. Kamal Nath, in paragraph 34 and 35, the Apex Court held thus:</p><p id="p_44" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"></p><blockquote id="blockquote_2" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">"34. Our legal system - based on English common law - includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the seashore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.</blockquote><blockquote id="blockquote_3" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">35. We are fully aware that the issues presented in this case illustrate the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasingly complex society, find it necessary to encroach to some extent upon open lands heretofore considered inviolate to change. The resolution of this conflict in any given case is for the legislature and not the courts. If there is a law made by Parliament or the State Legislatures the courts can serve as an instrument of determining legislative intent in the exercise of its powers of judicial review under the Constitution. But in the absence of any legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership, or for commercial use. The aesthetic use and the pristine glory of the natural resources, the environment and the ecosystems of our country cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for the public good and in public interest to encroach upon the said resources.</blockquote><p id="p_45" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">10. In the case of Fomento Resorts & Hotels Limited v. Minguel Martins 4, In paragraphs 53 to 55 and 65, the Apex Court held thus:</p><blockquote id="blockquote_4" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">"- The public trust doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. This doctrine puts an implicit embargo on the right of the State to transfer public properties to private party if such transfer affects public interest, mandates affirmative State action for effective management of natural resources and empowers the citizens to question ineffective management thereof.</blockquote><blockquote id="blockquote_5" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">- The heart of the public trust doctrine is that it imposes limits and obligations upon government agencies and their administrators on behalf of all the people and especially future generations. For example, renewable and non-renewable resources, associated uses, ecological values or objects in which the public has a special interest (i.e. public lands, waters, etc.) are held subject to the duty of the State not to impair such resources, uses or values, even if private interests are involved. The same obligations apply to managers of forests, monuments, parks, the public domain and other public assets. Professor Joseph L. Sax in his classic article, ―The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention‖ (1970), indicates that the public trust doctrine, of all concepts known to law, constitutes the best practical and philosophical premise and legal tool for protecting public rights and for protecting and managing resources, ecological values or objects held in trust.</blockquote><blockquote id="blockquote_6" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">- The public trust doctrine is a tool for exerting long-established public rights over short-term public rights and private gain. Today every person exercising his or her right to use the air, water, or land and associated natural ecosystems has the obligation to secure for the rest of us the right to live or otherwise use that same resource or property for the long-term and enjoyment by future generations. To say it another way, a landowner or lessee and a water right holder has an obligation to use such resources in a manner as not to impair or diminish the people's rights and the people's long-term interest in that property or resource, including 15 down slope lands, waters and resources.</blockquote><blockquote id="blockquote_7" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">- We reiterate that natural resources including forests, water bodies, rivers, seashores, etc. are held by the State as a trustee on behalf of the people and especially the future generations. These constitute common properties and people are entitled to uninterrupted use thereof. The State cannot transfer public trust properties to a private party, if such a transfer interferes with the right of the public and the court can invoke the public trust doctrine and take affirmative action for protecting the right of people to have access to light, air and water and also for protecting rivers, sea, tanks, trees, forests and associated natural ecosystems.‖ (emphasis added)</blockquote><blockquote id="blockquote_8" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">- Public at large has a right to enjoy and have a benefit of our forests including mangroves forest. The pristine glory of such forests must be protected by the State. The mangroves protect our environment. Therefore, apart from the provisions of various statutes, the doctrine of public trust which is very much applicable in India makes it obligatory duty of the State to protect and preserve mangroves. </blockquote><blockquote id="blockquote_8" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">‖ PRECAUTIONARY PRINCIPLE</blockquote><p id="p_46" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">11. In M.C. Mehta v. Union of India [(1987) 4 SCC 463] this Court held as under:</p><p id="p_47" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"></p></div><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><div><p id="p_48" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">"The financial capacity of the tanneries should be considered as irrelevant while requiring them to establish primary treatment plants. Just like an industry which cannot pay minimum wages to its workers cannot be allowed to exist, a tannery which cannot set up a primary treatment plant cannot be permitted to continue to be in existence for the adverse effects on the public. Life, public health and ecology have priority over unemployment and loss of revenue problem."</p></div><div><p id="p_49" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">The Precautionary Principle has been accepted as a part of the law of the land. Articles 21, 47, 48-A and 51- A(g) of the Constitution of India give a clear mandate to the State to protect and improve the environment and to safeguard the forests and wildlife of the country. It is the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures. The ―Precautionary Principle makes it mandatory for the State Government to anticipate, prevent and attack the causes of environment degradation. We have no hesitation in holding that in order to protect the two lakes from environmental degradation it is necessary to limit the construction activity in the close vicinity of the lakes.</p></div><div><p id="p_51" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">17. India is endowed with extraordinarily diverse and distinctive traditional water bodies found in different parts of the country, commonly known as ponds, tanks, lakes, vayalgam, ahars, bawdis, talabs and others. They play an important role in maintaining and restoring the ecological balance. They act as sources of drinking water, recharge groundwater, control floods, support biodiversity, and provide livelihood opportunities to a large number of people. Currently, a major water crisis is being faced by India, where 100 million people are on the frontlines of a nationwide water crisis and many major cities facing an acute water shortage. The situation will worsen as United Nations and Niti Ayog reports say that the demand for water will reach twice the available supply, and 40 per cent of India's population will not have access to clean drinking water by 2030. One of the reasons is our increasing negligence and lack of conservation of waterbodies. Since independence, the government has taken control over the waterbodies and water supply. With a colonial mindset, authorities move further and further away in the quest of water supply, emphasing more on networks, infrastructure and construction of dams. This, over time, has led to the neglect of waterbodies and catchments areas. As a result, we have started valuing land more than water. In the last few decades, waterbodies have been under continuous and unrelenting stress, caused primarily by rapid urbanisation and unplanned growth. Encroachment of waterbodies has been identified as a major cause of flash floods in Mumbai (2005), Uttrakhand (2013), Jammu and Kashmir (2014) and Chennai (2015). Further, waterbodies are being polluted by untreated effluents and sewage that are continuously being dumped into them. Across the country, 86 waterbodies are critically polluted, having a chemical oxygen demand or COD concentration of more than 250 mg/l, which is the discharge standard for a polluting source such as sewage treatment plants and industrial effluent treatment plants. In urban India, the number of waterbodies is declining rapidly. For example, in the 1960s Bangalore had 262 lakes. Now, only 10 hold water. Similarly, in 2001, 137 lakes were listed in Ahmedabad. However, by 2012, 65 were already destroyed and built upon. Hyderabad is another example. In the last 12 years, it has lost 3,245 hectares of its wetlands. The decline in both the quality and quantity of these waterbodies is to the extent that their potential to render various economic and environmental services has reduced drastically. Although there are sufficient polices and acts for protection and restoration of waterbodies, they remain insufficient and ineffective.</p></div><div><p id="p_52" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">18. Realizing the seriousness of the problem confronting waterbodies, the Centre had launched the Repair, Renovation and Restoration of Water Bodies' scheme in 2005 with the objectives of comprehensive improvement and restoration of traditional water bodies. These included increasing tank storage capacity, ground water recharge, increased availability of drinking water, improvement of catchment areas of tank commands and others. However, in this regard, not much has been seen on the ground.</p></div><div><p id="p_54" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">19. It is of utmost importance for meeting the rising demand for water augmentation, improving the health of waterbodies as they provide various ecosystem services that are required to manage microclimate, biodiversity and nutrient cycling. Many cities are working towards conservation of waterbodies like the steps initiated in the capital city of Delhi for instance. In turning Delhi into a city of lakes, rejuvenation of 201 waterbodies has been finalised. Of these, the Delhi Jal Board (DJB) plans to revive 155 bodies while the Flood and Irrigation Department will revive 46. DJB claims that the aim is to achieve biological oxygen demand or BOD to 10ppm and total suspended solids to 10mg/l. Also the establishment of the Wetlands Authority by the Delhi government is a welcome step towards notifying and conserving natural waterbodies. In order to achieve the goal of revival of waterbodies, it is important to understand that one solution may not fit all the waterbodies. Depending on the purpose, ecological services, livelihood and socio-cultural practices, the approach will vary from one waterbody to another. However the issues with regard to lack of data and action plans, encroachments, interrupted water flow from the catchment, siltation, violations of laws, solid waste deposit and polluted water, involvement of too many agencies, etc have to be taken into consideration.</p></div><div><p id="p_55" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">Action needs to be taken towards:</p></div><div><blockquote id="blockquote_9" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">1. Attaining sustainability. Thus, emphasis on long-term goals, operation and maintenance should be included along with the allocation of budget.</blockquote></div><div><blockquote id="blockquote_10" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">2. Success of the lakes should be tested on all three fronts namely economic, environmental and social. Many studies point that a deliberate effort has to be made on the social front for which better publicity of the environmental benefits of the project and enhancing environmental awareness, especially among the local community is required.</blockquote></div><div><blockquote id="blockquote_11" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">3. Encouraging local people to collaborate with other stakeholders to successfully utilise resources and ensure the protection and conservation of waterbodies.</blockquote></div><div><blockquote id="blockquote_12" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">4. Traditionally, water was seen as a responsibility of citizens and the community collectively took the responsibility of not only building but also of maintaining the water bodies. This needs to be brought back into the system.</blockquote></div><div><blockquote id="blockquote_13" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">5. Thus, an integrated approach taking into account the long-term sustainability, starting from the planning stage where looking at every waterbody along with its catchment, is required.</blockquote></div></blockquote><div><p id="p_50" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"></p></div><div><p id="p_53" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"></p></div><div><p id="p_56" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">12. The natural source of air, water and soil cannot be utilized, if the utilization results in irreversible damage to environment. There has been accelerated degradation of the environment primarily on account of lack of effective enforcement of environmental laws and non- compliance with statutory norms. It has been repeatedly held by the Supreme Court that the right to live is a fundamental right under Article 21 of the Constitution and it includes the right to enjoyment of pollution free water and air for full enjoyment of life. The definition of sustainable development which was given more than three decades back still holds goods. The phrase covers the development that meets the need of the present without compromising the availability of future generation to meet their own needs. Sustainable development means the type or extent of development that can take place and which can be sustained by nature / ecology with or without mitigation. In these matters the required standards now is that the risk or harm to the environment or to human health is to be decided in public interest according to a reasonable person test. Life, public health and ecology has priority over unemployment and loss of revenue.</p><p id="p_57" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"><b>13. This is a condition which is squarely covered by Hinchlal Tiwari Vs Kamla Devi 2001 AIR SCW 2865 followed and quoted in Jagpal Singh Vs State of M.P. (2011) 11 SCC 396. It is authoritatively reiterated in Hinchlal Tiwari and Jagpal Singh that land recorded as pond must not be allotted to anybody for construction of a house or any allied purpose. The court ordered the respondents in the case of Hinchlal Tiwari and Jagpal Singh to vacate the land they had illegally occupied after taking away the material of the house. In another case of MI Builders (P) Ltd. Vs Radheshyam Sahu (1999) 6 SCC 464 the Supreme Court ordered restoration of a park after demolition of shopping complex constructed at the cost of Rs.100 crores.</b></p><p id="p_58" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"><b>14. Both these judgments of Hinchlal Tiwari and Jagpal Singh have been appreciated by a Division Bench of the court in (2011) 2 MPLJ 618 Rinkesh Goyal Vs. State of M.P. in which under similar circumstances directions have been given that there should not be any encroachment over the land of ponds, tanks and lakes. Long period of encroachment is no defence and does not give any equity. The cost of construction done after destroying a pond is also immaterial. In the present case it is undisputed that the pond area has been converted into the cultivation of crops, construction of residential, commercial activities which is not permissible in law. The inevitable conclusion therefore is the same has to be restored.</b></p><p id="p_59" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"></p><p id="p_60" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">15. In view of the provision as contained in Section 57 Madhya Pradesh Land Revenue Code the entire land of water body, minerals etc. are the property of the State Government. The State Government is the owner of the land including water bodies and the Municipal Corporation was not competent to take any decision to construct commercial shops or residential buildings on and around the said water body. He has also taken reliance on the judgement of the Hon'ble the Madhya Pradesh High Court in Sukchain vs. the State of Madhya Pradesh decided on 20.09.2017 (High Court of Madhya Pradesh at Jabalpur in Writ Petition No. 1377/2016). The relevant portions are quoted as below:</p><p id="p_61" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"></p><blockquote id="blockquote_14" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">"14. This is a case where Gram Sabha and petitioners on the strength of Article 243(A) and Sections-5(A) and 7 of the 41 Adhiniyam, trying to justify the resolution and construction of shops at the pond whereas Government's stand is that said provisions do not confer any such licence to Gram Sabha to construct the shops at the pond. This interesting conundrum can be best defined in the words of Justice K.K. Mathew:</blockquote><blockquote id="blockquote_15" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">"The major problem of human society is to combine that degree of liberty without which law is tyranny with that degree of law without which liberty become licence; and the difficulty has been to discover the practical means of achieving this grand objective and to find the opportunity for applying these means in the ever shifting tangle of human affairs."</blockquote><blockquote id="blockquote_16" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">[see- 'Legends in Law', Page 372, Universal Publication ]</blockquote><blockquote id="blockquote_17" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">15. Before dealing with rival contentions, it is apposite to refer the relevant portion of Sections-5-A and 7 of the Adhiniyam:</blockquote><blockquote id="blockquote_18" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">Section-5-A. Constitution and incorporation of Gram Sabha.-</blockquote><p id="p_62" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">There shall be a Gram Sabha for every village. The Gram Sabha shall be a body corporate by the name specified therefor having perpetual succession and a common seal and shall by the said name sue and be sued and shall subject to the provisions of this Act and the rules made there under have power to acquire, hold and dispose of any property movable or immovable, to enter into contract and to do all other things necessary for the purpose of this Act."</p><p id="p_63" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"><u>Writ Petition No.1377 of 2016.</u></p><p id="p_64" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">[Section-7. Powers and functions and Annual meeting of Gram Sabha. - (1) Subject to the rules, which the State Government may make in this behalf, and subject to the general or special orders, as may be issued by the State Government from time to time, the Gram Sabha shall have the following powers and functions, namely,- (j-ii) to manage natural resources including land, water, forests within the area of the village in accordance with provisions of the Constitution and other relevant laws forthe lime being in force;</p><p id="p_65" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">(j-iii) to advise the Gram Panchayat in the regulation and use of minor water bodies;</p><p id="p_66" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">(l) construction, repair and maintenance of public wells, ponds and tanks and supply of water for domestic use;</p><p id="p_67" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">(m) construction and maintenance of sources of water for bathing and washing and supply of water for domestic animal;</p><p id="p_68" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">(o) construction, maintenance and clearing of public streets, latrines, drains, tanks, wells and other public places;</p><p id="p_69" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">(p) filling in of disused wells, unsanitary ponds, Pools ditches and pits and conversion of step wells into sanitary wells;</p><p id="p_70" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">16. As noticed, the constitutional provision and Sections-5-A and 7 of the Adhiniyam in no uncertain terms makes it clear that powers and functions of Gram Sabha are not absolute in nature. Such powers and functions are subject to the provisions of local laws and general instructions/orders issued by the Government. The State legislature introduced Madhya Pradesh Gram Panchayat (Registration of Coloniser Terms & Conditions) Rules, 1999 (hereinafter called as 'Rules of 1999'). Rule 2(i) describes 'Competent Authority' which means such Sub Divisional Officer who has jurisdiction over Gram Panchayat concerned. Rule 2(d) defines 'Coloniser'. This definition is wide enough to include the activity of converting any land including agricultural land into plots and action to transfer such plots to the persons desirous to construct residential or non-residential or group housing etc. The Rules of 1999 further provide the methodology for the purpose of registration etc. As per these rules, the Government has made attempt to ensure that even land situated in a Panchayat is regulated by way of statutory rules. Section-57 of Madhya Pradesh Land Revenue Code reads as under:</p><p id="p_71" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"><u>Writ Petition No.1377 of 2016.</u></p><p id="p_72" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">"57. State ownership in all lands.-(1) All lands belong to the State Government and it is hereby declared that all such lands, including standing and flowing water, mines, quarries, minerals and forests reserved or not, and all rights in the sub-soil of any land are the property of the State Government:</p><p id="p_73" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">[Provided that nothing, in this section shall, save as otherwise provided in this Code, be deemed to affect any rights of any person subsisting at the coming into force of this Code in any such property.] (2) Where a dispute arises between the State Government and any person in respect of any right under subsection (1) such dispute shall be decided by the [State Government].</p><p id="p_74" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">17. As per this provision, the legislature has declared that not only the lands but all such things including -(a) standing and flowing water, (b) mines, (c) quarries, (d) minerals, (e) forest reserved or not and (f) all rights in the sub-soil of any land, shall be the property of the State Government. In exercise of power under Section-172 of the said Code, rules regarding diversion of land for building purposes were notified by notification No.1183-(VIII)-63, 03.05.1963. Rules 7 of these rules reads as under:</p><blockquote id="blockquote_19" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">"7. If any portion of the land included in a holding is occupied by a public road or public tank for irrigation or any nistar purposes or is being used by the general public for any kind of nistar, permission to divert it to any other purpose except agriculture shall not be granted, unless the road or tank thereon has ceased to exist or to meet the convenience of the public, or the land is no longer required for a public purpose. Permission to divert the remaining portion of the holding may be granted, subject to the condition that such diversion shall not adversely affect the use and utility of the excluded portion as above. Explanation.- For the purpose of this rule "Public tank" shall not include a tank which is used only for irrigation of land in the sole occupation of the Bhoomiswami in whose holding the tank lies."</blockquote><blockquote id="blockquote_20" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">18. A careful reading of this provision shows that if a public tank is being used for the purpose of nistar etc. by general public, permission for its diversion can be granted only for the purpose of agriculture. Thus, the Government has taken pains to ensure that pond/water bodies are properly preserved. </blockquote><u>Writ Petition No.1377 of 2016.</u><p id="p_75" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"></p><p id="p_76" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">19. Reverting back to Section-7 of the Adhiniyam, on which great emphasis was laid by Shri Trivedi, it is apposite to mention that clause (j-ii) provides that in order to manage natural resources, the necessary powers can be exercised. Interestingly, we 'manage' something which is precious to us. We manage our family, finance, property, resources etc. Thus, the word 'manage' in the context it is used, shows an endeavour to keep, preserve and protect the natural resources including the pond. In Black's Law Dictionary the word 'manage' is defined as 'to control and direct', 'to administer', 'to take charge of' etc. Almost similar meaning is given to this word in Webster's Comprehensive Dictionary and P. Ramanatha Aiyar's Law Lexicon. This is golden rule of interpretation that 'interpretation must depend on the text and the context'. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statue is best interpreted when we know why it was enacted. (See 1987 (1) SCC 424 [Reserve Bank of India Vs. Peerless General Finance and Investment Company Limited & others]). It is equally well settled that adopting the principle of literal construction of the statue alone, in all circumstances without examining the context and scheme of the statue, may not subserve the purpose of the statue. In the words of V.R.Krishna Iyer, J., such an approach would be 'to see the skin and miss the soul'. Whereas, 'the judicial key to construction is the composite perception of deha and dehi of theprovision'. (See 1977 (2) SCC 256 [The Chairman, Board of Mining Vs. Ramjee] followed in 2013 (3) SCC 489 [Ajay Maken Vs. Adesh Kumar Gupta and another]).</p><p id="p_77" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">20. Thus, in my view, the word 'manage' cannot be read in the manner suggested by the petitioners. A combined reading of aforesaid reproduced clauses of Section-7 shows that the legislative intention behind it is to preserve and protect the water bodies/tanks. I am unable to hold that Gram Sabha has any unfettered/unbridled power to 'manage' its water bodies in the manner it likes. The preservation of water bodies is the constitutional mandate and the statutory duty of the Gram Sabha.</p><p id="p_78" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"><u>Writ Petition No.1377 of 2016.</u></p><p id="p_79" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">21. On more than one occasion, the Courts have expressed their concern for preservation of water bodies. In 2001 (6) SCC 496 [Hinch Lal Tiwari Vs Kamla Devi], the Apex Court considered Section-117 of U.P. Zamindari Abolition and Land Reforms Act, 1950. As per said provision, certain powers were given to the Gaon Sabhas and other local Authorities. While interpreting the said provision, it was held that it is difficult to sustain the order of the High Court. There exists a concurrent finding that a pond exists and the area covered by it varies in the rainy season. In such a case, no part of it could have been allotted to anybody for construction of house building or any allied purposes.</p><p id="p_80" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">22. The judgment of Hinchlal Tiwar<b>i (supra) was again considered in 2011 (11) SCC 396 [Jagpal Singh Vs State of Punjab]. In addition, the judgment of Madras High Court reported in 2005 (4)CTC 1 (MAD) [L. Krishnan Vs State of T.N.] was considered and it was held that the Court will pass a similar order as it was passed in Hinchlal Tiwari and L. Krishnan (supra). A Division Bench of this Court also expressed its concern about conservation of water and natural resources in 2011 (2) MPLJ 618 [Rinkesh Goyal Vs State of Madhya Pradesh]. Pertinently, it was a PIL in which necessary directions as under were issued.</b></p></div><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px; text-align: left;"><div><p id="p_81" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">"10. In this view of the matter, this petition is disposed of with the following directions:-</p></div><div><p id="p_82" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">(1) That, in each divisional level a Committee be constituted under the chairmanship of Revenue Commissioner of the division to monitor the effective implementation of the water conservation schemes introduced by the Government for the aforesaid purpose.</p></div><div><p id="p_83" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">(2) The Committee shall also ensure that there should not be any encroachment over the land of ponds, tanks and lakes, and if, there is any encroachment that be removed immediately.</p></div><div><p id="p_84" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">(3) The State Government shall take effective steps in regard to water harvesting and ground water level management so the problem of reducing the level of ground water could be tackled.</p></div><div><p id="p_85" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">(4) A copy of this order be sent to the Chief Secretary of the State and also the Secretary, Revenue Department of the State."</p></div><div><p id="p_86" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">[Emphasis supplied] </p></div></blockquote><div><p id="p_86" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"><u>Writ Petition No.1377 of 2016. 23. </u></p><p id="p_86" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">In 2006 (1) SCC 1 [T.N. Godavaraman Thirumulpad Vs. Union of India & others] the Apex Court poignantly held as under: "Natural, resources are the assets of the entire nation. It is the obligation of all concerned, including the Union Government and State Governments to conserve and not waste these resources. Article 48-A of the Constitution requires that the State shall endeavour to protect and improve the environment and to safeguard the forest and wildlife of the country. Under Article 51-A, it is the duty of every citizen to protect and improve the natural environment including forest, lakes, rivers and wildlife and to have compassion for living creatures."</p><p id="p_87" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"></p><p id="p_88" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">24. In the same judgment, the Supreme Court held that we are trustees of natural resources which belong to all including the future generation as well. The public trust doctrine has to be used to protect the right of this as also the future generation.</p><p id="p_89" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">25. Similarly, a Division Bench of Madras High Court presided over by Markandey Katju, CJ and F.M. Ibrahim Kalifulla, J. (as their Lordships' then were) in 2005 SCC Online Mad 438 [L. Krishnan Vs. State of T.N] considered the need of protecting water bodies. After considering Articles 21, 47, 48-A and 51-A (g) of Constitution, it was held that the State has to protect and improve the environment. It has to safeguard the forest, lakes, rivers and wildlife. The 'precautionary principles' makes it mandatory for the State Government to anticipate, prevent and attack all of environmental degeneration. The Madras High Court followed the judgment reported in 1997 (3) SCC 715 [M.C.Mehta Vs Union of India] and came to hold that we have no hesitation in holding that in order to protect the two lakes from environmental degradation, it is necessary to limit the construction activity in close vicinity of lakes. This finding is based on para-10 of the judgment of Supreme Court in the case of M.C. Mehta (supra). In 2015 SCC Online Utt 1829 [Tahseen Vs. State of Uttarakhand and others] Alok Singh, J. held as under:-</p><blockquote id="blockquote_22" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">"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.</blockquote><blockquote id="blockquote_23" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">[Emphasis supplied] At the cost of repetition, it is apposite to remember that the Apex Court, in no uncertain terms, clarified that construction activity even in the close vicinity of the lakes; is impermissible. Resultantly, the High Court directed the Authorities to remove encroachments and restore the water body in its original form.</blockquote><p id="p_91" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">26. In 2013 SCC Online P&H 10564 [Jagdev Singh Vs. State of Punjab & Haryana and others], the High Court followed the ratio decidendi of Hinchlal Tiwari (supra) and opined that the Gram Panchayat which has a statutory obligation to ensure that water bodies are not diverted for any other use and further to ensure that these water bodies are protected, cleaned and recharged, it cannot be allowed to use a part of it for installation of a statue of a resident of the village. A Division Bench of Calcutta High Court in 2013 SCC Online Cal 1060 [Sandhya Barik & others Vs. State of West Bengal & others] expressed its view that this is bounden duty of panchayat and other authorities to prohibit such construction and said property cannot be alienated or permitted to be destroyed in any manner. No construction can be permitted over such water body. Construction, if any, which have been made by any person, the respondent cannot claim equity. Even if any sanction is granted with regard to construction over the canal, the same is illegal and void. It was further directed that if there exists any encroachment on water body, appropriate action must be taken for clearing the encroachment made over the canal. The public trust doctrine expounded by Supreme Court in M.C. Mehta was followed by Calcutta High Court in Sandhya Barik (supra).</p><p id="p_92" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">27. Indisputably, in the instant case, the Gram Sabha took a decision to construct shops on the periphery (esM-) of the pond. In view of constitutional scheme, public trust doctrine and object engrained in Section-7 of the Adhiniyam, Gram Sabha cannot take any decision or pass resolution to raise construction either by disturbing the water body or on the periphery(esM-) of the water tank. In M.C. Mehta (supra), such action was clearly disapproved by Supreme Court. The common string in the judgments referred hereinabove is that herculean efforts should to be made to protect the water bodies. Such bodies are required to be protected from greedy politicians and persons. Ancient poet Rahim said: jfgeu ikuh jkf[k,] fcu ikuh lc lwu A ikuh x;s u mcjs eksrh] ekuq'k] pwu AA Meaning thereby:</p><p id="p_93" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">Water is most important. As without water, there is no wealth (pearls), life or earth.</p><p id="p_94" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"><b>28. Interestingly, in Jagpal Singh (supra), the Apex Court with pains recorded that 'our ancestors were not fools'. They knew that in certain years, there may be droughts or water shortages for some other reasons, 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. With great concern, Apex Court emphasized that the ponds are now a day's auctioned of 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.</b></p><p id="p_95" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">29. In the considered opinion of this Court, neither Constitution nor the Adhiniyam gives any unbridled/unfettered power and discretion to Gram Sabha to raise construction at or on the periphery (esM-) of the pond. Thus, argument of petitioners in this regard must fail. The judgments of Rajendra Shankar Shukla and S.N. Chandrashekhar (supra) have no application in the facts and circumstances of this case. Any autonomy 49 given by the Constitution or by the Adhiniyam needs to be tested on the anvil of enabling provision. When impugned action was tested on the anvil of such enabling provision, the said action was not found to be in consonance with the enabling provisions nor such action can be said to be in larger public interest. At this stage, it is apt to remember the words of Douglas, J. (in United States Vs. Winderlince [1996 L. Ed. 113:342 US 98 (1951)]) 'Law has reached its finest moments when it has freed man from the unlimited discretion of some ruler.....where discretion is absolute, man has always suffered'. The Apex Court followed this principle in 2012 (10) SCC 1[Natural Resources Allocation In Re, Special Reference No.1 of 2012] and expressed that it is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion, as Lord Mansfield stated it in classic terms in Wilkes, (ER p. 334): Burr at p.2539 means sound discretion guided by law. It must be governed by rule, not by humour: it must not be arbitrary, vague and fanciful.</p><p id="p_96" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">Article 343-A read with Section-7 of the Adhiniyam makes it clear like noon day that law makers have taken care of this aspect and ensured that unfettered and uncanalized discretion or power is not given to Gram Sabha in the matter of exercise of their power and functions. The powers and functions are subject to the provisions of law and its interpretation by the Courts. Writ Petition No.1377 of 2016.</p><p id="p_97" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">30. The reliance was placed by petitioners on the case of 2008 (3) MPLJ 617 [Prathmik Om Sai Gramin Mahila Bahuddeshiya Sehkari Samitie Maryadit Vs. Sub Divisional Officer, Baihar and other]. This judgment was relied upon to bolster the submission that if the complainants/private respondent was aggrieved by decision of Gram Sabha, the proper course was to assail the said resolution as per the procedure laid down in Section- 7(H) of the Adhiniyam. In view of relevant provision of the Constitution, Adhiniyam and Rules made under the Adhiniyam and Land Revenue Code, the Gram Sabha was not justified in taking the decision to construct shops on the periphery (esM-) of the pond. In view of settled legal position, this Court has no scintilla of doubt that the Gram Sabha has exceeded its authority while passing such resolution. In that case, it is not necessary to relegate the complainant/party to avail alternative remedy as per Section 7(H) of the Adhiniyam. Since resolution is passed by exceeding 50 jurisdiction/authority, it will not be proper to compel the complainant to go through the procedural technicalities of law. The action of Gram Sabha also runs contrary to public trust doctrine. Thus, such resolution and further action based there upon cannot be permitted to stand.</p><p id="p_98" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">31. As noticed, in the present case, the learned Collector has taken decision on the basis of directions issued by this Court in a Public Interest Litigation. It is important to note here that Punjab & Haryana, Madras and Calcutta High Courts have entertained Public Interest Litigation and issued necessary directions for preservation of water bodies. M.P. High Court in Rinkesh Goyal (supra) also entertained a PIL and issued necessary directions.</p><p id="p_99" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">Since the impugned order is passed as per the directions issued in PIL, it cannot be said that said order is without jurisdiction or without authority of law.</p><p id="p_100" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">32. So far the contention of the petitioners regarding two different reports of Revenue Authorities regarding (report of partwari and demarcation report) encroachment on the pond is concerned, I do not find much substance in the said argument. True it is that the order of Tehsildar is based on the report of Patwari and as per Patwari's report, the shops are being constructed by making encroachment in the pond whereas Revenue Inspector gave a different report stating that the construction has been made on the periphery (esM-) of the water body. In view of clear principles laid down in M.C. Mehta, permission of construction even in the close vicinity of water bodies is impermissible. In the present case, as per the petitioners own claim, the shops are being constructed on the periphery (esM-) of the lake. Thus, it is clearly done in the close vicinity of the lake. Thus, contradiction (if any) in the report of Patwari and Revenue Inspector is of no help to the petitioners.</p><p id="p_101" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"><b>33. In view of foregoing analysis, the resolution of Gram Sabha regarding construction of shops in the periphery (esM-) of pond cannot be countenanced. The said action runs contrary to the relevant provisions and law laid down by the Courts. Thus, no fault can be found in the impugned order.</b></p><p id="p_102" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">34. Before parting with the matter, I deem it apposite to direct the State Government and the concerned Collector to ensure that all such constructions/encroachments are removed. The official respondents shall remove such constructions and encroachments and file a compliance report before this Court within 60 days. It shall be the duty of respondents to restore water pond to its original shape and condition and preserve it as per the constitutional mandate.</p><p id="p_103" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">16. Hon'ble the High Court while disposing the various Writ Petitions has directed the Collector to ensure that all such construction encroachments are removed. The officer respondent shall remove such constructions and encroachments and file a compliance report within Sixty days and it shall be the duty of respondent to restore water pond to its original shape and condition and preserve it as for the Constitution mandate. In view of the Constitution Provisions, Adhiniyam and the Rules and Governments Orders issued under the Adhinyam and Land Revenue Code, the Municipal Corporation is not justified in taking the decision to construct the commercial shops on the periphery of the pond. In view of settled legal position this Tribunal has no scintilla of doubt that the corporation has exceeded its authority while passing such resolution. The action of Corporation runs contrary to public trust doctrine. It is to be noted that any autonomy given by the Constitution or by Adhiniyam needs to be tested on anvil of enabling provisions. When impugned action was tested on the anvil of such enabling provisions, the said action was not found to be in consonance with the enabling provisions nor can such action be said to be in the larger public interest.</p><p id="p_104" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"></p><p id="p_105" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">17. The reliance has been placed by the learned counsel on Susetha vs. State of Tamilnadu decided on 08.08.2006 by Hon'ble Supreme Court of India, Appeal (Civil) No. 3418 of 2006 (AIR 2006 SC 2893). The relevant portion are quoted below :</p><blockquote id="blockquote_24" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">"Drawing our attention to a decision of the Division Bench of the Madras High Court in L. Krishnan v. State of Tamil Nadu, AIR (2005) Madras 311, it was argued that the State Government was enjoined with a duty to preserve the tank by taking all possible steps both by way of preventive measures as well as removal of unlawful encroachments and not to use the same for commercial purpose."</blockquote><blockquote id="blockquote_25" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">"Concededly, the water bodies are required to be retained. Such requirement is envisaged not only in view of the fact that the right to water as also quality life are envisaged under Article 21 of the Constitution of India, but also in view of the fact that the same has been recognized in Articles 47 and 48-A of the Constitution of India. Article 51-A of the Constitution of India furthermore makes a fundamental duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life. [See Animal and Environment Legal Defence Fund v. Union of India and Ors., AIR (1997) SC 1071; M.C.</blockquote><blockquote id="blockquote_26" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">Mehta (Badkhal and Surajkund Lakes Matter v. Union of India and Ors., [1997] 3 SCC 715 and Intellectuals Forum, Tirupathi v.</blockquote><blockquote id="blockquote_27" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">State of A.P. and Ors., [2006] 3 SCC 549.</blockquote><blockquote id="blockquote_28" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">Maintenance of wetlands was highlighted by the Calcutta High Court in People united for better living in Calcutta - Public and Anr. v. State of West Bengal and Ors., AIR (1993) Cal. 215, observing that the wetland acts as a benefactor to the society.</blockquote><p id="p_106" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"></p><p id="p_107" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">Recently, in T.N. Godavaraman Thirumulpad (99) v. Union of India and Ors., [2006] 5 SCC 47, this Court again highlighted the importance of preservation of natural lakes and in particular those which are protected under the Wild Life (Protection) Act, 1972.</p><p id="p_108" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">We may, however, notice that whereas natural water storage resources are not only required to be protected but also steps are required to be taken for restoring the same if it has fallen in disuse. The same principle, in our opinion, cannot be applied in relation to artificial tanks.</p><p id="p_109" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">In L. Krishnan (supra), the Division Bench of the Madras High Court had been dealing with natural resources providing for water storage facility and in that view of the matter the State was directed to take all possible steps both preventive as also removal of unlawful encroachments so as to maintain the ecological balance.</p><p id="p_110" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">The matter has also been considered at some details by this Court in Intellectuals Forum, Tirupathi (supra), wherein again while dealing with natural resources, it was opined: "This is an articulation of the doctrine from the angle of the affirmative duties of the State with regard to public trust, Formulated from a negatory angle, the doctrine does not exactly prohibit the alienation of the property held as a public trust. However, when the state holds a resource that is freely available for the use of the public, it provides for a high degree of judicial scrutiny on any action of the Government, no matter how consistent with the existing legislations, that attempts to restrict such free use. To properly scrutinize such actions of the Government, the Courts must make a distinction between the government's general obligation to act for the public benefit, and the special, more demanding obligation which it may have as a trustee of certain public resources." [Emphasis supplied] This Courts have not, in the aforesaid decisions, laid down a law that alienation of the property held as a public trust is necessarily prohibited. What was emphasized was a higher degree of judicial scrutiny. The doctrine of sustainable development although is not an empty slogan, it is required to be implemented taking a pragmatic view and not on ipse dixit of the court.</p><p id="p_111" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">In Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group and Ors., [2006] 3 SCC 434, referring to a large number of decisions, it was stated that whereas need to protect the environment is a priority, it is also necessary to promote development stating:</p><p id="p_112" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">"The harmonization of the two needs has led to the concept of sustainable development, so such that it has become the most significant and focal point of environmental legislation and judicial decisions relating to the same. Sustainable development, simply put, is a process in which development can be sustained over generations. Brundtland Report defines `sustainable development' as development that meets the needs of the present generations without compromising the ability of the future generations to meet their own needs. Making the concept of sustainable development operational for public policies raises important challenges that involve complex synergies and trade offs."</p><p id="p_113" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">Treating the principle of sustainable development as a fundamental concept of Indian law, it was opined: "The development of the doctrine of sustainable development indeed is a welcome feature but while emphasizing the need of ecological impact, a delicate balance between it and the necessity for development must be struck. Whereas it is not possible to ignore inter-generational interest, it is also not possible to ignore the dire need which the society urgently requires."</p><p id="p_114" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">xx...............................xx..............................x...............xx "We would, however, direct the State and Gram Panchayat to see that other tanks in or around the village are properly maintained and necessary steps are taken so that there is no water shortage and ecology is preserved."</p><p id="p_115" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">18. The philosophy of the judgment as laid-down and quoted above are very much clear that it is the pious duty of the State and Local Authorities that the tanks and ponds of the villages/town are properly maintained and necessary steps be taken so that there is no water shortage and ecology is preserved. It is nowhere mentioned, authorizing anybody and everybody to make encroachment on water bodies anywhere or everywhere.</p><p id="p_116" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">19. In a constitutional framework which is intended to create, foster and protect a democracy committed to liberal values, the Rule of Law provides the corner stone. The Rule of Law is to be distinguished from rule by the law. The framers comprehended the setting up of a legal regime with clearly defined the rules and principles of even application, a regime of law which maintains the fundamental postulates of liberty, equality and due process. The rule of law postulates a law which is answerable to constitutional norms. The law in that sense is accountable as much as it is culpable of exacting compliance. Rule by the law on other hand can mean rule by a despotic law. It is to maintain the just quality of the law and its observance of reason that precepts of Rule of Law in constitutional democracy rest on constitutional foundation.</p><p id="p_117" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">20. We know and can take judicial cognizance of the fact that entire country is facing a tremendous scarcity of drinking and potable water almost everywhere and, in fact, it is a global phenomenon. It is this reason which required Regulators/Statutory Authorities to act responsibly for protection of environment and ecology and in particular, wetland/water bodies. They are expected to function in a more responsible and accountable manner and deeper study ought to have been made, before allowing any construction activities in vicinity of a wetland/water body, more so when project site is abutting the wetland itself. Importance of water no one can deny.</p><p id="p_118" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">21. It cannot be doubted that water though cover three-fourth of earth, still drinking and potable water is in great scarcity. Manmade ventures are the basic cause for this situation. Protection of wetland assumed international importance at very late stage. However, serious concern at global level is writ large from the fact that in 1991, Convention in Ramsar was held only to discuss protection of wetland. Some important wetlands across the world were identified therein. Signatory countries vowed to protect wetland by taking all necessary measures including stringent actions. This is a matter of common knowledge that people residing in urban areas had turned cities into jungles of concrete. Nature has lost its place, healthy and clean environment has been compromised in the name of development. The consequences are air pollution, scarcity of drinking water, extreme heat and cold, lack of raining etc. Earlier's comfortable life in such cities has become a nightmare. Resourceful people are now resorting to other areas on the outskirt or near such cities where they can enjoy proximity with nature. This attempt or desire is nothing but costing heavy to nature. It is a concerted effort by greedy elite class to cause destruction of nature in un- probed areas, which have remained untouched till date, but now are being frequently occupied by them.</p><p id="p_119" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">22. These constructions near water bodies areas are not as a necessity to provide shelter to homeless needy people or development to economy in general but virtually a part of luxury life for those who can afford. The elite class and its greed, in the name of development, has already destroyed cities and now moving towards the areas, rich in natural flora and fauna including forests, lakes, rivers, streams i.e., different type to water bodies and wetlands. In the name of stay in the lap of nature, in reality they are causing damage and destructing nature. In fact, commercial or residential construction projects do not need vicinity of wetlands or water bodies etc., as a necessity but Promoters/PPs/Developers normally choose such sites so as to increase salability and commercial value of their projects/constructions.</p><p id="p_120" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">23. When we talk of maintaining greenbelt surrounding a wetland/water body, it does not mean a public recreation place like public park, open space etc. It means a place reserved for natural wetlands own activities untouched by any PP/Developer for taking it as a part of its project.</p><p id="p_121" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">24. Problem of environment today is a Global phenomenon. The irresponsible and unmindful development has proved an enemy to environment. It has increased pollution everywhere compelling Global leaders to take recourse for protection of environment, if necessary, by framing strict and stringent provisions, but fact remains, that condition of environment today is extremely alarming.</p><p id="p_122" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">25. It is the pious duty of the Municipal Corporation to make a planning including town planning, planning for economic and social development, roads and bridges, water supply for domestic, industrial and commercial purposes, public health, sanitation conservancy and Solid Waste Management, urban forestry, protection of the environment and promotion of ecological aspects, slum improvement and up-gradation, urban poverty alleviation. Provisions of urban amenities and facilities such as parks, gardens, playgrounds promotion of cultural educational and aesthetic aspects. Cattle ponds prevention of cruelty to animals and public amenities.</p><p id="p_123" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">26. While dealing the matter of protection and restoration of water bodies in O.A. No. 325 of 2015 (vide order dated 18.11.2020), the following facts were suggested by the Expert body:</p><p id="p_123" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"><span style="font-family: inherit;">S. No. Act</span><span style="font-family: inherit;">ivity proposed Organization</span><span style="font-family: inherit;"> Responsible</span><span style="font-family: inherit;"> </span></p><p id="p_123" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"><span style="font-family: inherit;">1 Identification and Geo- Tagging of NRSA, State Space </span><span style="font-family: inherit;">Ponds or Lakes in the Country Application Centre </span><span style="font-family: inherit;">and Concerned State </span><span style="font-family: inherit;"> Departments</span></p><p id="p_123" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"><span style="font-family: inherit;">2 Assessment of Water Quality of Through Laboratories</span><span style="font-family: inherit;"> Ponds or lakes. approved under E(P)</span><span style="font-family: inherit;"> Act, 1986 by the </span><span style="font-family: inherit;">Concerned State Department /ULBs/State Environment Dept./SPCB/PCC.</span></p><p id="p_123" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"><span style="font-family: inherit;"> 3 Prioritization of Ponds or Lakes for State Environment </span><span style="font-family: inherit;">restoration in consultation with the Dept./SPCB /PCC. respective SPCB.</span></p><p id="p_123" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"><span style="font-family: inherit;">4 Preparation and submission of State Environment action plans for restoration of Dept./SPCB /PCC. prioritized Ponds or Lakes to CPCB for random scrutiny of proposed action plans. </span></p><p id="p_123" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"><span style="font-family: inherit;">5 Execution of approved action plans. State Environment Dept./SPCB /PCC under the overall supervision of Principal Secretary, Environment Department.</span><span style="white-space: pre-wrap;">27. </span></p><p id="p_123" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"><span style="white-space: pre-wrap;">As per report submitted by the CPCB, the status of ponds, lakes/water bodies in Madhya Pradesh as reported are 66,438 and in Rajasthan it is reported to be 12,127. The chart does not disclose the number of water bodies presently under restoration or number of water bodies restored so far. The action is required to be taken by the State of Madhya Pradesh to restore the water body, to protect it and to take remedial action according to environmental laws. We deem it just and appropriate to quote the relevant portion of analysis and directions as issued in the referred case.</span></p><p id="p_128" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"><b>Analysis and Directions</b></p><p id="p_129" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">16. We find that the steps taken so far can hardly be held to be adequate. As already noted, protection of water bodies serves great public purpose and is essential for protection of the environment. It helps not only aesthetics but also water availability, aquatic life, micro climate, recharge of ground water and maintaining e-flow of the rivers. Under the Public Trust Doctrine, the State has to act as trustee of the water bodies to protect them for the public use and enjoyment for current and future generations. We may note the observations of the Hon'ble Supreme Court on the subject which are as follows: i. State of T.N. v. Hind Stone, (1981) 2 SCC 205, at page 212:</p><p id="p_130" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">6. Rivers, Forests, Minerals and such other resources constitute a nation's natural wealth. These resources are not to be frittered away and exhausted by any one generation. Every generation owes a duty to all succeeding generations to develop and conserve the natural resources of the nation in the best possible way. It is in the interest of mankind. It is in the interest of the nation.</p><p id="p_131" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">ii. Hinch Lal Tiwari v. Kamala Devi, (2001) 6 SCC 496, at page 500:</p><p id="p_132" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">"13. It is important to notice that the material resources of the community like forests, tanks, ponds, hillock, mountain etc. are nature‟s bounty. They maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality life which is the essence of the guaranteed right under Article 21 of the Constitution." iii. T.N. Godavarman Thirumulpad v. Union of India, (2002) 10 SCC 606, at page 628:</p><p id="p_133" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">......... ......................... ......</p><p id="p_134" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">33. ... As was observed by this Court in M.C. Mehta v. Kamal Nath our legal system based on English common law includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. The public at large is the beneficiary of the seashore, running waters, air, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.</p><p id="p_135" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">iv. Intellectuals Forum v. State of A.P., (2006) 3 SCC 549, at page 574:</p><p id="p_136" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">75. In M.C. Mehta v. Kamal Nath & Ors. (1997) 1 SCC 388, Kuldip Singh, J., writing for the majority held:</p><blockquote id="blockquote_29" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">"34. Our legal system ... includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. ... The State as a trustee is under a legal duty to protect the natural resources."</blockquote><p id="p_137" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">76. The Supreme Court of California, in National Audubon Society v. Superior Court of Alpine Country also known as Mono Lake case summed up the substance of the doctrine. The Court said:</p><blockquote id="blockquote_30" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">"Thus, the public trust is more than an affirmation of State power to use public property for public purposes. It is an affirmation of the duty of the State to protect the people's common heritage of streams, lakes, marshlands and tidelands, surrendering the right only in those rare cases when the abandonment of the right is consistent with the purposes of the trust."</blockquote><p id="p_138" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"></p><p id="p_139" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">This is an articulation of the doctrine from the angle of the affirmative duties of the State with regard to public trust. Formulated from a negatory angle, the doctrine does not exactly prohibit the alienation of the property held as a public trust. However, when the State holds a resource that is freely available for the use of the public, it provides for a high degree of judicial scrutiny on any action of the Government, no matter how consistent with the existing legislations, that attempts to restrict such free use. To properly scrutinise such actions of the Government, the courts must make a distinction between the Government's general obligation to act for the public benefit, and the special, more demanding obligation which it may have as a trustee of certain public resources [Joseph L. Sax ―The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention‖, Michigan Law Review, Vol. 68, No. 3 (Jan. 1970) pp. 471-566]. According to Prof. Sax, whose article on this subject is considered to be an authority, three types of restrictions on governmental authority are often thought to be imposed by the public trust doctrine [ibid]:</p><blockquote id="blockquote_31" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">1. The property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public;</blockquote><blockquote id="blockquote_32" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">2. The property may not be sold, even for fair cash equivalent;</blockquote><blockquote id="blockquote_33" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">3. The property must be maintained for particular types of use (i) either traditional uses, or</blockquote><blockquote id="blockquote_34" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">(ii) some uses particular to that form of resources."</blockquote><p id="p_140" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">―...</p><p id="p_141" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">v. Jitendra Singh v. Ministry of Environment & Ors., 2019 SCC Online 1510 pr 20 "</p><p id="p_142" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">.... .......</p><p id="p_143" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">20. .... Waterbodies, specifically, are an important source of fishery and much needed potable water. Many areas of this country perennially face a water crisis and access to drinking water is woefully inadequate for most Indians. Allowing such invaluable community resources to be taken over by a few is hence grossly illegal."</p><p id="p_144" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">17. In NGT order dated 27.08.2020 in OA 351/2019, Raja Muzaffar Bhat vs. State of Jammu and Kashmir & Ors., it was observed:</p><blockquote id="blockquote_35" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">"</blockquote><blockquote id="blockquote_36" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">........... .......... ..............</blockquote><blockquote id="blockquote_37" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">34. One of the serious challenges is solid and liquid waste management, apart from encroachments.</blockquote><p id="p_145" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"></p><p id="p_146" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">There are binding directions of the Hon‟ble Supreme Court in Almitra H. Patel Vs. Union of India & Ors1. and Paryavaran Suraksha vs. Union of India2 on the subject of scientific management of solid waste and sewage/effluents in accordance with the statutory provisions of the Water (Prevention and Control of Pollution) Act, 1974, ("Water Act") Air (Prevention and Control of Pollution) Act, 1981, ("Air Act") and waste management rules framed under the Environment (Protection) Act, 1986 ("EP Act"). There is large scale non-compliance of the said statutory provisions which has led this Tribunal to consider the issue of river pollution in OA No. 673/2018, News item published in "The Hindu" authored by Shri Jacob Koshy Titled "More river stretches are now critically polluted: CPCB" in view of acknowledged data of 351 polluted river stretches in the country. Apart from the said issue, large scale failure has been found in the matter of solid waste management as repeatedly recorded in O.A. No. 606/2018. The Chief Secretaries of all the States/UTs were required to remain present in person before this Tribunal for interaction and further planning. In O.A. No. 325/2015, Lt. Col. Sarvadaman Singh Oberoi v. UOI & Ors., the Tribunal has considered the issue of restoration of water bodies. In Original Application No. 593/2017, Paryavaran Suraksha Samiti & Anr. v. UOI & Ors., the issue of untreated sewage or effluent being discharged in water bodies have been taken up for consideration. There are several other matters dealing with the such issues, including coastal pollution, pollution of industrial clusters etc.</p><p id="p_147" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">35. There is discussion in the media about inadequacy of monitoring of action for restoration of lakes, wetlands and ponds which is certainly necessary for strengthening the rule of law and protection of public health and environment3. Several directions have been issued by the Hon‟ble Supreme Court in M.K. Balakrishnan and Ors. v. UOI & Ors."</p><p id="p_148" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"></p><p id="p_149" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">18. We also note that the Ministry of Urban Development, Government of India, Central Public Health and Environmental Engineering Organization (CPHEEO) has issued an advisory on "Conservation and Restoration of Water Bodies in Urban Areas"5 in August, 2013 which need to be followed. The matter was also considered by the Standing Committee on Water Resources (2015-16), Sixteenth Lok Sabha. Its Tenth Report has been published by the Ministry of Water Resources, River Development and Ganga Rejuvenation under the heading "Repair, Renovation and Restoration of Water Bodies-Encroachment on Water Bodies and Steps Required to Remove the Encroachment and Restore the Water Bodies"6 in August, 2016. Further, the "Guidelines for the Scheme on Repair, Renovation and Restoration (RRR) of Water Bodies under PMKSY (HKKP)"7 have been published by the Ministry of Water Resources, River Development and Ganga Rejuvenation, Govt. of India in June, 2017. The said report also provides useful material to be looked into by the enforcement agencies.</p><p id="p_150" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"></p><p id="p_151" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">20. There is, thus, need for continuous planning and monitoring at National, State and District levels. Suggestions and observations of CPCB and the Oversight Committee need to be acted upon.</p><p id="p_152" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">21. As suggested by the CPCB, a single agency needs to be set up in every State/UTs within one month. This work may either be assigned to the Wetland Authority of the State or the River Rejuvenation Committee or to any other designated authority such as the Secretary, Irrigation and Public Health/Water Resources. It is made clear that if the State Wetland Authority is to be assigned the task of protection of all water bodies, this task will be in addition to the normal functioning of the State Wetland Authority under the Wetland (Conservation and Management) Rules, 2017. Such nodal agency must call a preliminary meeting on the subject with all the District Magistrates on or before 31.01.2021 to take stock of the situation and to plan further steps. Thereafter, a regular meeting may be held for periodic monitoring at the District level as well as the State level with the identified targets of proper and scientific identification and protection of all water bodies, assigning unique identification number, removing encroachments, preventing dumping of waste, maintaining water quality and restoration by taking other appropriate steps, involving the Panchayats and the community, utilizing the financial resources available from different sources. Steps taken need to be documented and compiled and reported to a central authority, preferably the CPCB. This Tribunal has already constituted a CMC to be headed by the Secretary, MoJS with the assistance of CPCB and other authorities to monitor remedial action for 351 polluted river stretches. Restoration of water bodies is also a connected issue which can be monitored by the same Committee atleast thrice a year at the national level.</p><p id="p_153" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"><b>Directions</b></p><p id="p_154" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">22. Accordingly, we dispose of this application with following directions:</p><p id="p_155" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">(i) All States/UTs may forthwith designate a nodal agency for restoration of water bodies, wherever no such agency has so far been so designated.</p><p id="p_156" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">(ii) Under oversight of the Chief Secretaries of the States/UTs, the designated nodal agency may a. Hold its meeting not later than 31.1.2021 to take stock of the situation and plan further steps, including directions to District authorities for further course of action upto Panchayat levels and to evolve further monitoring mechanism as well as Grievance Redressal Mechanism (GRM).</p><p id="p_157" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">b. Submit periodical reports to the CPCB/Secretary Jal Shakti, Government of India. First such report may be furnished by 28.02.2021.</p><p id="p_158" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">(iii) The CMC for monitoring remediation of 351 polluted river stretches, headed by the Secretary, MoJS may monitor the steps for restoration of water bodies by all the States periodically, atleast thrice in a year. First such monitoring may take place by 31.3.2021.</p><p id="p_159" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"></p><p id="p_160" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">(iv) The CMC may give its action reports to this Tribunal in OA 673/2018 and first such report may be furnished preferably by 30.4.2021 by e-mail."</p><p id="p_161" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">28. The matter of illegal construction in violation of Environmental Laws has again been dealt with by the Hon'ble Supreme Court of India in Civil Appellate Jurisdiction Civil Appeal No. 5041 of 2021 arising out of SLP (C) No. 11959 of 2014 decided on 31.08.2021 where Hon'ble the Supreme Court of India discussed the matter of illegal /unauthorised constructions as follows:-</p><blockquote id="blockquote_38" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">"146 The rampant increase in unauthorized constructions across urban areas, particularly in metropolitan cities where soaring values of land place a premium on dubious dealings has been noticed in several decisions of this Court. This state of affairs has often come to pass in no small a measure because of the collusion between developers and planning authorities."</blockquote><blockquote id="blockquote_39" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">"147 From commencement to completion, the process of construction by developers is regulated within the framework of law. The regulatory framework encompasses all stages of construction, including allocation of land, sanctioning of the plan for construction, regulation of the structural integrity of the structures under construction, obtaining clearances from different departments (fire, garden, sewage, etc.), and the issuance of occupation and completion certificates. While the availability of housing stock, especially in metropolitan cities, is necessary to accommodate the constant influx of people, it has to be balanced with two crucial considerations - the protection of the environment and the well-being and safety of those who occupy these constructions. The regulation of the entire process is intended to ensure that constructions which will have a severe negative environmental impact are not sanctioned. Hence, when these regulations are brazenly violated by developers, more often than not with the connivance of regulatory authorities, it strikes at the very core of urban planning, thereby directly resulting in an increased harm to the environment and a dilution of safety standards.</blockquote><p id="p_162" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">Hence, illegal construction has to be dealt with strictly to ensure compliance with the rule of law."</p><p id="p_163" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">"148 The judgments of this Court spanning the last four decades emphasize the duty of planning bodies, while sanctioning building plans and enforcing building regulations and bye-laws to conform to the norms by which they are governed. A breach by the planning authority of its obligation to ensure compliance with building regulations is actionable at the instance of residents whose rights are infringed by the violation of law. Their quality of life is directly affected by the failure of the planning authority to enforce compliance. Unfortunately, the diverse and unseen group of flat buyers suffers the impact of the unholy nexus between builders and planners. Their quality of life is affected the most. Yet, confronted with the economic might of developers and the might of legal authority wielded by planning bodies, the few who raise their voices have to pursue a long and expensive battle for rights with little certainty of outcomes. As this case demonstrates, they are denied access to information and are victims of misinformation. Hence, the law must step in to protect their legitimate concerns"</p><p id="p_164" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">"149 In K. Ramadas Shenoy v. Chief Officer, Town Municipal Council, Chief Justice AN Ray speaking for a two judge Bench of this Court observed that the municipality functions for public benefit and when it ―acts in excess of the powers conferred by the Act or abuses those powers then in those cases it is not exercising its jurisdiction irregularly or wrongly but it is usurping powers which it does not possess". This Court also held:</p><blockquote id="blockquote_40" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">"27...The right to build on his own land is a right incidental to the ownership of that land. Within the Municipality the exercise of that right has been regulated in the interest of the community residing within the limits of the Municipal Committee. If under pretence of any authority which the law does give to the Municipality it goes beyond the line of its authority, and infringes or violates the rights of others, it becomes like all other individuals amenable to the jurisdiction of the courts. If sanction is given to build by contravening a bye-law the jurisdiction of the courts will be invoked on the ground that the approval by an authority of building plans which contravene the bye-laws made by that authority is illegal and inoperative. (See Yabbicom v. King [(1899) 1 QB 444])."</blockquote><p id="p_165" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">".This Court held that an unregulated construction materially affects the right of enjoyment of property by persons residing in a residential area, and hence, it is the duty of the municipal authority to ensure that the area is not adversely affected by unauthorized construction".</p><p id="p_166" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">"150 These principles were re-affirmed by a two judge Bench in Dr. G.N. Khajuria v. Delhi Development Authority9 where this Court held that it was not open to the Delhi Development Authority to carve out a space, which was meant for a park for a nursery school. Justice BL Hansaria, speaking for the Court, observed:</p><blockquote id="blockquote_41" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">10. Before parting, we have an observation to make. The same is that a feeling is gathering ground that where unauthorised constructions are demolished on the force of the order of courts, the illegality is not taken care of fully inasmuch as the officers of the statutory body who had allowed the unauthorised construction to be made or make illegal allotments go scot free. This should not, however, have happened for two reasons. First, it is the illegal action/order of the officer which lies at the root of the unlawful act of the citizen concerned, because of which the officer is more to be blamed than the recipient of the illegal benefit. It is thus imperative, according to us, that while undoing the mischief which would require the demolition of the unauthorised construction, the delinquent officer has also to be punished in accordance with law. This, however, seldom happens. Secondly, to take care of the injustice completely, the officer who had misused his power has also to be properly punished. Otherwise, what happens is that the officer, who made the hay when the sun shined (sic), retains the hay, which tempts others to do the same. This really gives fillip to the commission of tainted acts, whereas the aim should be opposite."</blockquote><p id="p_167" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">"151. In Friends Colony Development Committee v. State of Orissa, this Court dealt with a case where the builder had exceeded the permissible construction under the sanctioned plan and had constructed an additional floor on the building, which was unauthorized. Chief Justice RC Lahoti, speaking for a two judge Bench, observed :</p><blockquote id="blockquote_42" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">"24. Structural and lot area regulations authorise the municipal authorities to regulate and restrict the height, number of storeys and other structures; the percentage of a plot that may be occupied; the size of yards, courts and open spaces; the density of population; and the location and use of buildings and structures. All these have in our view and do achieve the larger purpose of the public health, safety or general welfare. So are front setback provisions, average alignments and structural alterations. Any violation of zoning and regulation laws takes the toll in terms of public welfare and convenience being sacrificed apart from the risk, inconvenience and hardship which is posed to the occupants of the building."</blockquote><p id="p_168" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">Noting that the private interest of land owners stands subordinate to the public good while enforcing building and municipal regulations, the Court issued a caution against the tendency to compound violations of building regulations:</p><blockquote id="blockquote_43" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">"25...The cases of professional builders stand on a different footing from an individual constructing his own building. A professional builder is supposed to understand the laws better and deviations by such builders can safely be assumed to be deliberate and done with the intention of earning profits and hence deserve to be dealt with sternly so as to act as a deterrent for future. It is common knowledge that the builders enter into underhand dealings. Be that as it may, the State Governments should think of levying heavy penalties on such builders and therefrom develop a welfare fund which can be utilised for compensating and rehabilitating such innocent or unwary buyers who are displaced on account of demolition of illegal constructions."</blockquote><p id="p_169" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">"152 In Priyanka Estates International (P) Ltd. v. State of Assam , Justice Deepak Verma, speaking for a two judge Bench, observed:</p><blockquote id="blockquote_44" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">"55. It is a matter of common knowledge that illegal and unauthorised constructions beyond the sanctioned plans are on rise, may be due to paucity of land in big cities. Such activitiesare required to be dealt with by firm hands otherwise builders/colonisers would continue to build or construct beyond the sanctioned and approved plans and would still go scot-free. Ultimately, it is the flat owners who fall prey to such activities as the ultimate desire of a common man is to have a shelter of his own. Such unlawful constructions are definitely against the public interest and hazardous to the safety of occupiers and residents of multi-storeyed buildings. To some extent both parties can be said to be equally responsible for this. Still the greater loss would be of those flat owners whose flats are to be demolished as compared to the builder."</blockquote><p id="p_170" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">The Court lamented that the earlier decisions on the subject had not resulted in enhancing compliance by developers with building regulations. Further, the Court noted that if unauthorized constructions were allowed to stand or are ―given a seal of approval by Court‖, it was bound to affect the public at large. It also noted that the jurisdiction and power of Courts to indemnify citizens who are affected by an unauthorized construction erected by a developer could be utilized to compensate ordinary citizens. "153 In Esha Ekta Apartments Coop. Housing Society Ltd. v. Municipal Corpn. of Mumbai12, Justice GS Singhvi, writing for a two judge Bench, reiterated the earlier decisions on this subject and observed:</p><blockquote id="blockquote_45" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">"8. At the outset, we would like to observe that by rejecting the prayer for regularisation of the floors constructed in wanton violation of the sanctioned plan, the Deputy Chief Engineer and the appellate authority have demonstrated their determination to ensure planned development of the commercial capital of the country and the orders passed by them have given a hope to the law- abiding citizens that someone in the hierarchy of administration will not allow unscrupulous developers/builders to take law into their hands and get away with it."</blockquote><p id="p_171" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">The Court further observed that an unauthorized construction destroys the concept of planned development, and places an unbearable burden on basic amenities provided by public authorities. The Court held that it was imperative for the public authority to not only demolish such constructions but also to impose a penalty on the wrongdoers involved. This lament of this Court, over the brazen violation of building regulations by developers acting in collusion with planning bodies, was brought to the fore-front when the Court prefaced its judgment with the following observations:</p><blockquote id="blockquote_46" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">"1. In the last five decades, the provisions contained in various municipal laws for planned development of the areas to which such laws are applicable have been violated with impunity in all the cities, big or small, and those entrusted with the task of ensuring implementation of the master plan, etc. have miserably failed to perform their duties. It is highly regrettable that this is so despite the fact that this Court has, keeping in view the imperatives of preserving the ecology and environment of the area and protecting the rights of the citizens, repeatedly cautioned the authorities concerned against arbitrary regularisation of illegal constructions by way of compounding and otherwise."</blockquote><p id="p_172" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">Finally, the Court also observed that no case has been made out for directing the municipal corporation to regularize a construction which has been made in violation of the sanctioned plan and cautioned against doing so. In that context, it held:</p><blockquote id="blockquote_47" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">"56. We would like to reiterate that no authority administering municipal laws and other similar laws can encourage violation of the sanctioned plan. The courts are also expected to refrain from exercising equitable jurisdiction for regularisation of illegal and unauthorised constructions else it would encourage violators of the planning laws and destroy the very idea and concept of planned development of urban as well as rural areas."</blockquote><blockquote id="blockquote_48" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">"154 These concerns have been reiterated in the more recent decisions of this Court in Kerala State Coastal Zone Management Authority v. State of Kerala13, Kerala State Coastal Zone Management Authority v. Maradu Municipality, Maradu and Bikram Chatterji v. Union of India.</blockquote><blockquote id="blockquote_49" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;"></blockquote><blockquote id="blockquote_50" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">29. In the conclusion, Hon'ble the Supreme Court of India has directed to demolish the illegal and unauthorised construction and the cost of demolition and all incidental expenses including the fees payable to the experts are directed to be borne by the person who have constructed illegally.</blockquote><p id="p_173" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">30. In view of the above facts, we direct as follows:</p><blockquote id="blockquote_51" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">(i) The Collector is directed to remove the encroachment from the ponds, water bodies in accordance with law.</blockquote><blockquote id="blockquote_52" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">(ii) The Collector, and the Municipal Corporation/Municipal Council, are directed to ensure that no solid waste should be thrown in the pond area and in case if it is found that there is a violation of Solid Waste Management Rules, 2016, State Pollution Control Board is directed to take necessary action, initiating prosecution as well as calculation and realisation of Environmental Compensation as per parameters laid down by the Central Pollution Control Board.</blockquote><blockquote id="blockquote_53" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">(iii) The Collector, and the Municipal Corporation/Municipal Council, are directed to ensure that there shall not be any discharge of untreated sewage water in to the water body/pond and if there is any violation of the Water (Prevention and Control of Pollution) Act, 1974 or direction issued by the Hon'ble Supreme Court of India and Principal Bench of this Tribunal, environmental compensation at the rate prescribed must be assessed and realised.</blockquote><blockquote id="blockquote_54" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">(iv) In light of the settled pronouncement of Hon'ble the Supreme Court in Goel Gang Developers India Pvt. Ltd. vs. Union of India referred above with regard to the calculation of environmental compensation, 10% of the project cost shall be assessed and realized from the polluter. State Pollution Control Board is directed to proceed and to exercise its statutory duty to initiate the proceedings of prosecution as well as the calculation and assessment of the realization of environmental compensation in accordance with law.</blockquote><p id="p_174" style="font-family: "Times New Roman", Times, serif; font-size: 16.9px; text-align: justify;">(v) A copy of the order be sent to the Secretary (Environment), State of Madhya Pradesh who shall monitor or may constitute a committee or direct the authorities concerned to comply the order and remove the encroachment on the State land/water bodies which was found unauthorized and illegal. He shall monitor periodically and ensure the removal of encroachment at the earliest in due process of law. Accordingly, the Original Application 48 of 2022 stands disposed off.</p></div>Claim for Commonshttp://www.blogger.com/profile/06082132405339033351noreply@blogger.com0