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July 9, 2012//National
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BY
LESLIE ST. ANNE
Even
as Goans lament and watch helplessly as the once verdant and fertile
land of their ancestors, is sullied, raped and disfigured by huge
housing complexes, innumerable hotels, specialty hospitals and
white-elephant government projects put-up by unscrupulous builders
from Delhi, Mumbai and Goa, ably abetted by pliant local politicians,
an effective weapon of control wielded by the Country’s Apex Court
lies with the State’s highest bureaucrat – the Chief Secretary.
The
stalling of implementation of the Regional Plan 2021 notwithstanding,
a judgment by the Supreme Court in dismissal of a Civil Appeal filed
against the State of Punjab arising out of a Special Leave Petition
(Civil) CC No.19869/2010 should have served as a deterrent to the
indiscriminate land grab and use of ‘community lands and water
bodies for purpose of housing and other ostensible government and
private development projects —- which in Goa could certainly
encompass Communidade properties.
The
two member bench of the Supreme Court, comprising Honorable Justices
Markandey Katju and Gyan Sudha Mishra, while disposing of the Civil
Appeal No.1132/2011 @ SLP (C) No.3109/2011 filed by a local builder
/developer against the Punjab Government, pointed out 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) (sic), which were for
centuries used for common benefit of villagers of the village for
various purposes, for e.g. for their cattle to drink and bathe, for
storing the harvested grain, for grazing ground, as a maidan for
their children to play, threshing floor, carnivals, circuses,
ramlila, cart stands, water-bodies, passages, cremation ground ,
graveyards etc..’
The
Justices observed that ‘these lands stood vested through local laws
in the State and were generally treated as inalienable in order that
their status as community land is preserved. There were no doubt
exceptions to the rule which permitted the Gram Sabha/Panchayat to
lease out some of this land to landless laborers and members of
Scheduled Castes/ Tribes. But this was done only in exceptional
cases’.
Taking
strong cognizance of the Appeal filed by one Jaspal Singh and others
seeking to overturn an ‘impugned judgment of the Punjab and Haryana
High Court dated 21/5/2010’ which had upheld an earlier judgment of
the learned Single Judge of the High Court pronounced on 10/02/2010,
the Supreme Court Judges were blatantly blunt while arriving at their
ruling. “What we have observed since Independence, is that in large
parts of the country this common village land has been grabbed by
unscrupulous persons, using muscle power, money power or political
clout, and in many States now there is not an inch of such land left
for the common use of the people of the village though it may exist
on paper. People with power and pelf operating in villages all over
India systematically encroached upon communal land and put them to
uses totally inconsistent with its original character, for personal
aggrandizement at the cost of the village community. This was done
with active connivance of the State authorities and local powerful
vested interests and goondas. This Appeal is a glaring example of
this state of affairs,” the Apex Court observed.
The
honorable SC justices were of a view that ‘the appellants were
‘neither the owner nor the tenants of the land in question –in
this case recorded as a pond –situated in village Rohar
Jagir, Tehsil and District Punjab. They are in fact trespassers and
unauthorized occupants (sic) and they appear to have filled the
village pond and made constructions thereon.’
The
chain of events that led to the Supreme Court ruling began with the
Gram Panchayat Rohar Jagir, filing an application under Section 7 of
the Punjab Village Common Lands (Regulation) Act 1961, to evict the
respondents therein, Jaspal Singh and others who had ‘unauthorizedly’
occupied the aforesaid land. In its petition, the Gram Panchayat
Rohar Jagir had alleged that ‘the land in question belonged to the
Gram Panchayat, Rohar, as is clear from land revenue records.’
However,
‘the respondents (appellants herein) had forcibly occupied the said
land and begun making constructions thereon illegally. An application
was consequently moved before the Deputy Commissioner informing him
about the illegal acts of the respondents (appellants herein)
and stating that the aforesaid land is recorded in the revenue
records as Gair Mumkin Toba – a village pond. The petition stated
that the villagers have been using the same since drain water of the
village falls into the pond and it is used by the cattle of the
village for drinking and bathing. An FIR was also filed against the
respondents but to no avail. It was alleged that the latter ‘have
illegally raised constructions on the said land and lower
officials of the department and Gram Panchayat had colluded with
them.’
In
compiling their ruling, the two-Judge Bench of the Supreme Court,
observed that surprisingly ‘instead of ordering the eviction of
these unauthorized occupants, the Collector Patiala held that ‘it
would not be in the public interest to dispossess them, and instead
had directed the Gram Panchayat, Rohar to recover from the
respondents (appellants herein) the cost of the land as per the
Collector’s rates.’ ‘Thus, the Collector colluded in
regularizing this illegality on the ground that the respondents
(appellants herein) have spent huge money on constructing houses on
the said land’, opined the learned Justices.
The
SC Bench noted that in a further turn of events ‘some persons filed
an Appeal before the Commissioner challenging the Order of the
Patiala Collector on September 13, 2005. The Appeal was allowed on
December 12, 2007. The Commissioner held that it was clear that the
Gram Panchayat was colluding with these respondents as it had not
even opposed the Order passed by the Collector in which directions
were issued to the Gram Panchayat to transfer the property to
these persons nor filed an Appeal against the Collector’s Order.’
Evidence
produced before the SC Bench showed that the Commissioner while
disposing of that Appeal, had held that ‘the village pond has been
used for the common purpose of the villagers and cannot be allowed to
be encroached upon by any private respondents, whether Jagirdars or
anybody else.’ Photographs submitted before the Commissioner showed
that recent attempts had been made to encroach into the village
pond by filling it up with earth and making new constructions
thereon. When the matter had gone to the officials for the removal of
these illegal constructions, no action was taken for reasons best
known to the authorities at that time. The Commissioner was of view
that ‘regularizing such kind of illegal encroachment is not in the
interest of the Gram Panchayat and that Kharsra No.369 (84-4) is part
of the village pond , and the respondents (appellants herein)
illegally constructed their houses at the site without any
jurisdiction and without even any resolution of the Gram Panchayat.’
Against
this Order of the Commissioner, a Writ Petition was filed before the
honorable Single Judge of the High Court. This Petition was dismissed
by the honorable Single Judge vide a Judgment dated 10/2/2010. The
dismissal was further upheld by the Division Bench of the High Court.
The petitioners then went in Appeal before the two-member Bench of
the Country’s Apex Court.
The
Honorable Justices Markandey Katju and Gyan Sadhu Mishra, while
dismissing the Appeal, were caustic in their ruling. They said, “We
find no merit in this Appeal. The Appellants herein were trespassers
who illegally encroached on to the Gram Panchayat land using muscle
power/money power and in collusion with officials and even the Gram
Panchayat. We are of opinion that such kind of blatant illegalities
must not be condoned. Even if the appellants have built houses on the
land in question they must be ordered to remove their constructions,
and possession of the land in question must be handed back to the
Gram Panchayat. Regularizing such illegalities must not be permitted
because it is Gram Sabha land which must be kept for the common use
of villagers of the village.”
While
annulling a letter from the Government of Punjab ‘permitting
regularization of possession of these unauthorized occupants’, the
Supreme Court Bench opined that ‘such letters are wholly illegal
and without jurisdiction. Such illegalities cannot be regularized and
we cannot allow the common interest of the villagers to suffer
merely because the unauthorized occupation has subsisted for many
years.’
Citing
a case where the Supreme Court had ordered the restoration of a park
after demolition of a shopping complex constructed at a cost of over
Rs.100 crores, and another where the Apex Court had held that even
where the law permits compounding of unsanctioned
constructions, such compounding should only be by way of an
exception, Justices Kajtu and Mishra, opined that ‘this decision
will apply with even greater force in cases of encroachment of common
land. Ordinarily, compounding in such cases should only be allowed
where the land has been leased to landless laborers or members
of Scheduled Castes/ Scheduled Tribes, or the land is actually being
used for a public purpose of the village e.g. running a school for
the villagers or a dispensary for them.’
The
Supreme Court Bench was scathingly critical on the issuance of
government orders by many States ‘permitting allotment of Gram
Sabha land to private persons and commercial enterprises on
payment of some money’. All such Government Orders are illegal and
should be ignored, the Apex Court opined.
Referring
to an earlier Supreme Court judgment (AIR 2001 SC 3215) where it was
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’, Justices Kajtu and Mishra hailed the wisdom of the past
generation. “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. These were their traditional rain
water harvesting methods, which served for thousands of years”,
they said.
In
dismissal of the Appeal of Jaspal Singh for want of merit, the
honorable Supreme Court Bench rued the fact that ‘over the last few
decades, most of the 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 such malpractices must stop,’ the Court warned.
Finally
in conclusion, the Supreme Court Bench directed “all State
Governments in the Country to 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 common use of villagers of the village.”
For
this purpose, the Chief Secretaries of all State Governments / Union
Territories of India are directed to do the needful, taking the help
of other senior officers of the Governments. The said scheme should
provide for 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,” the Supreme Court Order has specified. A copy
of this Order has been sent to all Chief Secretaries with
instructions to ensure strict and prompt compliance (sic) and reports
to be sent to the Apex Court from time to time.
Granted
that this Supreme Court Order is specific to a pond, but its emphasis
must not be lost as it seeks to protect ‘community lands’ from
abuse by land-grab sharks who wield muscle and money power. Given
that Goa is unique in that a vast portion of its land comprising
ponds, water bodies, verdant fields and hillocks belong to the
Communidades (village communities)—which have in recent years been
usurped, by draconian State Acts—this ruling should come as a
welcome bludgeon for sincere local social activists striving to
preserve Goa’s pristine eco-structure!UTS’
