HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on -26.07.2019
Delivered on - 19.08.2019
Case :- WRIT - C No. - 17868 of 2015
Petitioner :- Dileep Rai And Arn.
Respondent :- State Of U.P. And 3 Ors.
Counsel for Petitioner :- Shashi Kant Rai
Counsel for Respondent :- C.S.C.,Anil Yadav,Tariq Maqbool Khan
Hon'ble Saurabh Shyam Shamshery,J.
1. This petition has filed for challenging the order dated 25.07.2011 passed by Tehseeldar Bansgaon, Gorakhpur under Section 122 of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referd as U.P.Z.A. & L.R. Act) whereby the petitioners were found in wrongfull occupation on a land which is registered as ''Pokhri' in revenue records and an order of eviction as well as an order of damages was passed. The another order which is impugned dated 29.12.2014 was passed by collector Gorakhpur whereby the Revision petition filed by the petitioner under Section 122-B(4) of U.P.Z.A. & L.R. Act was rejected and the order dated 25.07.2011 was upheld.
2. This Court has passed the following order on 15.04.2015:-
"Heard Sri Shashi Kant Rai, learned counsel for the petitioners, learned standing counsel for the State respondents and learned counsel appearing for the Gaon Sabha. Learned counsel for the petitioners contends that this writ petition may be treated to be filed on behalf of the petitioner no.1. So far as petitioner no.2 is concerned he may be given liberty to file a fresh writ petition.
In view of the submission of the learned counsel for the petitioner office is directed to return the certified copy of the impugned order relating to petitioner no.2 within three days to the learned counsel for the petitioner.
While assailing the impugned order learned counsel for the petitioner contends that the petitioner has not raised construction over the Gaon Sabha land and the land belongs to the petitioner. It has also been submitted that in case the impugned orders are given effect to the petitioner will be shelterless as he has only this house for residential purpose.
Matter requires scrutiny.
Issue notice.
Notices on behalf of respondent nos. 1 to 3 have been accepted by the office of the learned chief standing counsel whereas Sri T.M.Khan has accepted notice on behalf of respondent no.4 therefore, notice need not be issued to respondent nos. 1 to 4.
The respondents are directed to file counter affidavit within six weeks. Rejoinder affidavit, if any, be filed within two weeks thereafter. List thereafter.
As an interim measure without prejudice to the rights and contentions of the parties subject to deposit of Rs. 4,000/- before the respondent no.3 within a period of three months and remaining Rs. 6,000/- in two equal six monthly instalments the eviction of the petitioner from the house in question shall remain stayed. It is further provided that in the meantime neither any new construction shall be made except necessary repairs in the house nor any third party right shall be created over the same."
3. Sri Shashi Kant Rai, learned counsel for the petitioners submitted that the petitioners are in possession over the land-in-question as an old abadi and have constructed house on the same. There is no Pokhri (Pond) on the land-in-question. Learned counsel for the petitioner further submitted that there is a circular dated 15.04.2010 of the State of U.P. that the persons who are in unauthorised possession of ponds, should be settled elsewhere. However, in the present case the petitioners who are in very old occupation on the land are being dispossessed without giving any alternative land.
4. Per contra Dev Bhan Panday, learned Standing Counsel for the State submitted that the impugned orders have been passed after making a spot inspection, on the basis of revenue records wherein the land-in-question is mentioned as Pokhri (Pond). Therefore, the learned counsel submitted that there is no illegality in the impugned orders and this writ petition is liable to be dismissed.
5. Considered the submissions made by the Advocates on behalf of the rival parties and perused the records. A copy of the revenue record has been annexed along with this writ petition wherein the land-in-question has been entered as Pokhri and the learned counsel for the petitioner has not able to dispute the said entry. The Tehsildar as well as the Collector Gorakhpur after considering the report, spot inspection and revenue records conclusively concluded that the petitioners were in wrongful occupation on the land-in-question and they are guilty of causing damage and therefore, the order passed for eviction as well as recovery of damage are legal.
6. It is relevent to mention following paragraphs from the judgment passed by Supreme Court in Civil Appeal No. 1132 of 2011, Jagpal Singh & others versus State of Punjab & others wherein the Supreme Court has directed to frame scheme of eviction of illegal/unauthorised occupants on the land of Gram Sabha or Gram Panchayat especially where it is on the pond:-
"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) 8 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 ordered3 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.
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.
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.
19. 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.
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."
7. In view of the above discussion I am of the view that the petitioners have not been able to point out any illegality in the impugned orders. The impugned orders have been passed on the basis of spot inspection and revenue records. Therefore, there is no infirmity in the impugned orders. Petitioners are in unauthorised possession of land-in-question. The State Authorities are duty bound to comply with the directions passed by the Supreme Court in the Jagpal Singh (supra) and all endeavour should be taken to restore such lands to the State.
8. In view of the above discussions this writ petition is bereft of merit and the same is accordingly dismissed and the authorities are directed to execute the impugned orders expeditiously. Interim order, if any, stands vacated.
Order Date :- 19.08.2019
A. Dewal
(Saurabh Shyam Shamshery, J.)
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