Uttarakhand High Court in Govt. Officials Co-op Housing Society and Ors. v. State of Uttarakhand & Ors. [Order dated 29.10.2018]

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition No. 1883 (MS) of 2007 

Government Officials Co-op. Housing Society and others.                      ..........Petitioner. 

Versus 

State of Uttarakhand and others.                                                               ...... Respondents. 

Present: Mr. Lalit Belwal, Advocate for the petitioner. 

Mr. M.S. Bisht, Brief Holder for the State of Uttarakhand / respondents no. 1 to 3. 

Mr. R.S. Sammal, Advocate for respondent no. 4. 

Hon'ble Alok Singh, J.

1. On 18.02.1957 State of U.P. leased out plot no. 249 measuring about 20 acres in favour of petitioner society. In this land, space for park was also left out. Vide Government Order dated 22.04.2006 State Government was pleased to grant lease of this park in favour of respondent no. 4 admeasuring 1103.825 sq. mtr. Feeling aggrieved, petitioners have approached this Court.

2. Heard Mr. Lalit Belwal, Advocate for the petitioner, Mr. M.S. Bisht, Brief Holder for the State of Uttarakhand and Mr. R.S. Sammal, Advocate for respondent no. 4.

3. Mr. R.S. Sammal, Advocate for respondent no. 4 submits that respondent no. 4 is conducting cultural activities in the said lease property and is not using for its personal use; respondent no. 4 is using this property for social and charitable purposes.

4. Hon'ble Apex Court in the case of Jagpal Singh and others v. State of Punjab and others reported in (2011) 11 SCC 396, in paragraph nos. 3, 4, 15, 16, 17, 18, 19 and 20, has held as under:

"3. The protection of commons 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 vs. Paladuge Anjayya, 1972(1) SCC 521 (529) this Court observed:

"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(c) of the Estates Abolition Act.

4. What we have witnessed since Independence, however, 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 lands 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 7 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.

.........

15. In M.I. Builders (P) Ltd. vs. Radhey Shyam Sahu, 1999(6) SCC 464 the Supreme Court ordered restoration of a park after demolition of a shopping complex constructed at the cost of over Rs. 100 crores.

16. In Friends Colony Development Committee vs. State of Orissa, 2004 (8) SCC 733 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 actually being used for a public purpose of the village e.g. running a school for the villagers, or a dispensary for them.

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.

18. 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 8 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.

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.

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."

5. As per the dictum of Hon'ble Apex Court in the case of Jagpal Singh (supra), the land reserved for the community like public pathway, park, village pond, grazing grounds, etc. etc. should not be allowed to be allotted by the State Government or the Gram Sabha for any purpose and community at large should not be deprived from using the land, which was reserved for their purposes.

6. In view of the above, writ petition succeeds and is allowed. Government Order dated 22.04.2006 passed by State Government is hereby quashed. Consequence to follow. No order as to order.

(Alok Singh, J.) 

29.10.2018