Claim for Commons: Residence Welfare Association Ekta Enclave v. State (NCT) of Delhi & Ors. [31.10.2013]

Case Summary: A writ Petition was filed n public interest seeking that action be taken against encroachers of johads, ponds, lakes and water bodies in villages. Under the provisions of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act 1948, certain water bodies belonging to the Gaon Sabha had been allotted to persons to make good the deficiencies in allotment of land during the consolidation process. The principle issue in the case was whether such water bodies can be allotted to make good the deficiencies in allotment of land during the consolidation process?

The Hon'ble Court held that water bodies/johads/water tanks/lakes/water ponds are community assets and help in preserving and improving the environment. The Court ordered all Deputy Secretaries to ensure that the possession of all such water bodies allotted to a villager during the consolidation process be taken back and revived; and that no such water bodies be allotted in future to make good such aforementioned deficiencies.

IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P. (C) 4437/2013 & CM No. 10260/2013

Residence Welfare Association Ekta Enclave...............Petitioner

Through : Mr. B.S. Chowdhary, Adv.

Vs.

State (NCT) of Delhi & Ors. ................Respondents

Through : Ms. Zubdea Begum and Ms. Jayendra, Advs. for R-1 to 5

Date of Decision: 31.10.2013

Hon'ble Judges/Coram:
Nuthalapati Venkata Ramana, C.J. and Manmohan, J.

JUDGMENT

Manmohan, J.

1. The present writ petition has been filed in public interest seeking a direction to the respondents to take strong action against encroachers of johads, ponds, lakes and water bodies in villages.

2. In the counter affidavit, the stand taken by the respondent-State is that water bodies/johads, belonging to the Gaon Sabha had been allotted to persons in accordance with the orders of the Financial Commissioner under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 to make good the deficiencies in allotment of land during consolidation proceedings.

3. Today, a Status Report has been handed over by the learned counsel for the respondents. The said Status Report reads as under:

“It is respectfully submitted that Sh. Deepak Tyagi, Sh. Rahul Tyagi and Sh. Rajeev Tyagi all sons of Sh. Rajvans was allotted 02 Bigha 08 Biswa land and Ram Kishan S/o Sh. Nathu was allotted 01 Bigha 04 Biswa land out of 28 Bigha 02 Biswa land bearing Khasra No. 149/2/2 Village Burari which was earmarked for Johad (Pond/Water Body) as per the order of Financial Commissioner, Delhi to make good deficiencies to them.

Hon'ble Supreme Court vide order dated 28.1.2011 has passed order in civil appeal in the matter of Jaspal Singh & Ors. v/s. State of Punjab and others that "State Govt. in the country 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....The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and brief hearing

In view of the above case it is submitted that we will take action to evict the said allottee/occupants of Johad/Pond, Gram Sabha Land in pursuance of the Hon'ble Supreme Court orders.”

4. The aforesaid Status Report is taken on record and the respondent is held bound by the same. In any event, we have perused the order dated 19th August, 1997 passed by the Financial Commissioner and are of the opinion that the said order does not stipulate that water bodies/johads/lakes are to be allotted to villagers who have been allotted land less than their entitlement during consolidation proceedings.

5. In our opinion, water bodies/johads/lakes/water tanks are not only community assets, but also help in preserving and improving the environment. Article 48A of the Constitution stipulates that the State shall endeavour to protect and improve the environment. Further, the Supreme Court in Jagpal Singh and Ors. Vs. State of Punjab and Ors., (2011) 11 SCC 396 has held as under:

“13. We find no merit in this appeal. The Appellants herein 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. We are of the 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.

14. The letter dated 26.9.2007 of the Government of Punjab permitting regularization of possession of these unauthorized occupants is not valid. We are of the opinion that such letters are wholly illegal and without jurisdiction. In our opinion such illegalities cannot be regularized. We cannot allow the common interest of the villagers to suffer merely because the unauthorized occupation has subsisted for many years.

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17. 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.

xxx

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. 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.”

6. Consequently, all Deputy Commissioners are directed to ensure that none of the water bodies/johads/water tanks/lakes/water ponds are encroached or allotted in future to make good the deficiency of land during consolidation proceedings. If any water bodies/water tanks/johads/lakes have been allotted in the past to a villager during consolidation proceedings and no permanent structure has been constructed thereon, the Deputy Commissioners are directed to ensure that possession of the said bodies is taken back after giving them alternative land. Deputy Commissioners are also directed to ensure that water bodies/johads/water tanks/lakes/water ponds are maintained, developed as well as kept clean and if necessary, the same be revived.

7. With the aforesaid directions, the present writ petition and application stand disposed of.

Manmohan, J

Chief Justice

October 31, 2013