A big relief : A Supreme Court judgement serves as a deterrent to the indiscriminate land grab

Written by editor// July 9, 2012//National News//3 Comments

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’

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