IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (PIL) No. 59 of 2016
With Delay Condonation Application No. 18045 of 2018
Recall Application No. 1467 of 2018
Mohammad Akram ...Appellant
Vs.
State of Uttarakhand and others ...Respondents
Mr. Pooran Singh Rawat, learned Counsel for the appellant.
Mr. T.A. Khan, learned Senior Counsel assisted by Mr. A.K. Arya, learned counsel for the applicants in Modification Application No. 1483 of 2018.
Mr. B.D. Pande, learned counsel for the applicants in Recall Application No. 1467 of 2018.
Mr. Paresh Tripathi, learned Chief Standing Counsel for the State of Uttarakhand/respondent nos. 1 to 3.
Mr. Kartikey Hari Gupta, learned counsel for respondent nos. 4 and 5.
Dated: 03rd December, 2018
Coram: Hon’ble Ramesh Ranganathan, C.J.
Hon’ble R.C. Khulbe, J.
Ramesh Ranganathan, C.J. (Oral)
The application to condone the delay, caused in filing the recall application, is not opposed and is, therefore, ordered. Delay is condoned.
2. Heard Sri Pooran Singh Rawat, learned Counsel for the appellant, Sri T.A. Khan, learned Senior Counsel for the applicants in Modification Application No. 1483 of 2018, Sri B.D. Pande, learned counsel for the applicants in Recall Application No. 1467 of 2018, Sri Paresh Tripathi, learned Chief Standing Counsel for the State of Uttarakhand-respondent nos. 1 to 3, and Sri Kartikey Hari Gupta, learned counsel for respondent nos. 4 and 5-Nagar Panchayat, Sultanpur. With their consent this application is being disposed of.
3. This application is filed to recall the order passed by this Court earlier in this writ petition on 04.09.2018. While the aforesaid order was passed by a Division Bench comprising of Justice Rajiv Sharma and Justice Manoj Kumar Tiwari, Justice Rajiv Sharma has since been transferred and Justice Manoj Kumar Tiwari is on leave today. As the applicants, in the recall application, express urgency, this Bench is taking up this application, to recall the earlier order, today.
4. Pursuant to order passed on 04.09.2018, the applicants claim that several buildings are sought to be demolished, and irreparable injury would be caused to them, if the said order were not recalled.
5. On the other hand Sri Paresh Tripathi, learned Chief Standing Counsel appearing on behalf of the State of Uttarakhand, would submit that the order of the Division Bench dated 04.09.2018 required the officials to remove all encroachments, from the khasras mentioned in the order dated 04.09.2018, within a period of three months from the date of the order; the three month period stipulated in the order is to expire today; and since failure on the part of the officials to remove the encroachments would result in their having violated the said order dated 04.09.2018, and being proceeded against under the Contempt of Courts Act, they are obligated to comply with the aforesaid directions; and they have no choice but to remove the encroachments today itself.
6. While the relief sought for in the writ petition was for a mandamus directing the respondents to evict the encroachers from the pond land in Khata No. 00675, Khasra No. 827/1, 827/4, 803, 463 of Village Sultanpur, Pargana Bazpur, District Udham Singh Nagar, as per the directions given by the Supreme Court in Jagpal Singh & Others Vs. State of Punjab and others [(2011) 11 SCC 396], the Division Bench, while passing the order dated 04.09.2018, has directed all encroachments to be removed latest by today i.e. 03.12.2018. In its order dated 04.09.2018, the Division Bench noted that the petitioner had sought directions to the respondents to evict the encroachers from the pond land in Khata No. 00675, Khasra No. 827/1, 827/4, 803, 463 situated in Village Sultanpur, Pargana Bazpur, District Udham Singh Nagar; the respondent-State had admitted that pakka structures have been constructed on pond land; and in paragraph no. 3 of the counter affidavit, it is stated that, at present, the said land is being used for the purpose of a Police Check-post; the Nagar Panchayat complex, an Inn and some shops of the Nagar Panchayat, are also situated on the said land, which is also being used for public utility purposes. The writ petition was disposed of directing the respondents to remove all encroachments from the khasras, as mentioned in paragraph no. 3 of the counter affidavit, within a period of three months from the date of the order. All the District Magistrates, throughout the State of Uttarakhand, were directed to ensure that no construction is made, on the pond land henceforth, at the peril of contempt of Court.
7. In so far as the last part of the order dated 04.09.2018 is concerned, all the learned counsel, appearing in the matter, agree that, in the light of the law declared by the Supreme Court in Jagpal Singh & Others (supra), no construction can be permitted to be raised over pond land henceforth; and, consequently, no interference is called for. The submissions put forth by the applicants in this recall application is confined to the directions issued, in the order dated 04.09.2018, to the respondents to remove all encroachments from the said khasras within a period of three months from the date of the order.
8. Sri T.A. Khan, learned Senior Counsel, Ms. Charanjeet Kaur, and Sri B.D. Pande, learned counsel appearing on behalf of the applicants, seeking recall of the order dated 04.09.2018, would submit that classification of the land, which was earlier under category VI(1) which relates to water bodies, has later been changed to category IV which relates to Government land other than water bodies; the land, on which these buildings have been constructed, is in khasra no. 823/7; the said land shown in the khatauni as category VI(1), which is no longer the case; and, since there is no prohibition for construction being raised on lands under category IV, the Division Bench erred in directing removal of the constructions raised over the said land. Reliance is also placed on behalf of the applicants on Section 116 (b) and (c) of the Uttar Pradesh Municipalities Act, 1916, and on Section 124 thereof, to contend that, since these lakes and water courses all vest in the Municipalities under Section 116 (b) and (c), the Municipality has the power, under Section 124, to alienate these lands; and in any event, as per the Supreme Court judgment in Jagpal Singh & Others (supra), the obligation cast on the State Government is only to prepare a scheme, wherein they are required to prescribe conditions for removal of encroachments after a notice is issued and an opportunity of being heard is afforded to all those encroachers who have been in occupation of the said land for the past several decades, some of them for a period beyond half a century ago.
9. On the other hand Sri Pooran Singh Rawat, learned counsel appearing on behalf of the petitioner, would submit that the State Government did not have the power, in the first place, to reclassify the lands in the light of Section 132(a) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the “1950 Act”); and the contention that sub-clause (c), of Section 132 of the 1950 Act, would enable the State Government to alienate land to a local body which, in turn, is entitled to alienate these lands in favour of others, does not merit acceptance.
10. While it does appear from the khatauni of the earlier years that the subject land was, in fact, classified as category VI(1), it appears to have been reclassified later as catetory-IV. Sri B.D. Pande, learned counsel for the recall applicants, is not in a position to state as to when the classification of the land was changed. We, however, find substantial force in the submission of Sri Pooran Singh Rawat that, in the light of Section 132(a) of the 1950 Act, bhumidhari rights shall not accrue in lands covered by water or land located in the bed of a river.
11. We find no force in the submission of Ms. Charanjeet Kaur that sub-clause (a) of Section 132 should be read as subject to sub-clause (c) of Section 132 of the 1950 Act, or that the power of the State Government to alienate land in favour of municipalities or other local bodies, would enable such local bodies to circumvent the requirement of Section 132(a) of the 1950 Act and alienate lands, covered by water bodies or lands in the bed of a river (which falls within the ambit of Section 132(a) of the 1950 Act), to others.
12. While it does appear, on a plain reading of Section 132 of the 1950 Act, that the State Government lacks jurisdiction to alienate lands covered by water bodies, we refrain from saying anything more as these are all matters for the State Government to consider in the first instance. Suffice it to make it clear that, in case classification of land is subsequent to the 1950 Act coming into force and if, as is contended before us by Sri Pooran Singh Rawat that Section 12(a) of the 1950 Act is attracted, it would then appear that the State Government may not have been justified in reclassifying the lands which were hitherto classified as water bodies, into lands belonging to the State Government other than water bodies. The concerned official shall also examine this aspect while complying with the directions which we shall issue hereinafter.
13. Yet another contention put forth by Sri B.D. Pande, learned counsel appearing on behalf of the applicants, is based on the provisions of the U.P. Municipalities Act, 1916, which have been adopted by the State of Uttarakhand. Section 116 thereof relates to properties vested in a municipality and, subject to any such reservation made by the State Government, all properties of the nature referred to in the said section, and situated within the municipal area, shall vest in and belong to the municipality and shall with all other property, which may become vested in the Municipality, be under their direction, management and control, that is to say, among others, all public streams, lakes, springs, tanks, wells and water-courses. The contention is that, since all water bodies including lakes and watercourses belong to the municipalities, they have the power under Section 124 of the Uttar Pradesh Municipalities Act, 1916 to alienate such property by way of sale, mortgage, lease deed etc.. This contention needs only be noted to be rejected.
14. While it is true that, in terms of sub-clauses (b) and (c) of Section 116 of the Uttar Pradesh Municipalities Act, 1916, all public streams, lakes, springs, tanks, wells and water-courses, located within the limits of the municipalities, vest with the municipality itself, the power to alienate property, under Section 124 of the Uttar Pradesh Municipalities Act, 1916, is subject to restrictions imposed by or under the said Act. The said power would also be subject to the law in force and since the law declared by the Supreme Court is binding on all authorities under Article 141 of the Constitution of India, alienation of municipal land, covered by water bodies, contrary to the law declared by the Supreme Court, would be impermissible.
15. That then takes us to the question as to whether the Division Bench was justified in passing the order dated 04.09.2018, which the applicants now request us to recall. As the petitioner had relied on the judgment of the Supreme Court in Jagpal Singh & Others (supra), it is necessary to take note of the directions issued therein. In Jagpal Singh & Others (supra), the Supreme Court observed:
“……..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……” (emphasis supplied)
16. In terms of the law declared by the Supreme Court in Jagpal Singh & Others (supra), as extracted hereinabove, the obligation cast on all State Governments is to prepare schemes for eviction of illegal/unauthorized occupants of a Gram Sabha/Gram Panchayat/Poramboke/ Shamlat land, and to be restored to the Gram Sabha/Gram Panchayat for common use of the villagers. The hypertechnical distinction sought to be drawn by Sri T.A. Khan, learned Senior Counsel, between Gram Panchayats and Municipalities and his submission that the law declared in Jagpal Singh & Others (supra) would apply only to Gram Panchayats, and not to Municipalities, does not merit acceptance. The obligation cast on the State Government, in terms of the aforesaid judgment of the Supreme Court, is to prepare a scheme for eviction of illegal/unauthorized occupants including all Gram Panchayats, (which in our view would also include other local bodies such as Municipalities etc.) for common use of the village or the people residing in the Municipality; and the scheme should provide for speedy eviction of such illegal occupants, after putting them on notice, and giving them an opportunity of a brief hearing. The Supreme Court also made it clear that the long duration of such illegal occupation or huge expenditure for making construction or political connections etc. must not be treated as a justification for regularizing the illegal possession; and regularization should only be permitted in exceptional cases where lease has been granted under some Government notification to the landless labourers or members of the Scheduled Castes/Scheduled Tribes, or where there already exists a school, dispensary or other public utility on the land.
17. As the petitioner himself sought a mandamus only for a directions to be issued, in terms of the law declared by the Supreme Court in Jagpal Singh & Others (supra), we are of the view that the Division Bench was not justified in issuing directions, which not only run contrary to what the Supreme Court has held, but also go far beyond the relief sought for in the writ petition itself. We consider it appropriate, therefore, to recall the order passed in this writ petition dated 04.09.2018, and instead direct the Government of Uttarakhand to prepare a scheme for eviction of illegal/unauthorized occupants of municipal lands in the State, which are covered by water bodies such as lakes, ponds, streams, water-courses etc. As directed by the Supreme Court the scheme shall provide, among others, for a showcause notice to be given to the encroachers and to be provided an opportunity of a brief hearing. The State Government shall also take note of the exceptions carved out by the Supreme Court in the aforesaid judgment regarding lease granted under a Government Notification to landless labourers or members of the Scheduled Castes/Scheduled Tribes or areas where there exists a school, dispensary or other public utility on the land.
18. The scheme shall be prepared at the earliest and, in any event, not later than six months from the date of receipt of a certified copy of this order; and action shall be taken forthwith, after such scheme is formulated, to evict encroachers or unauthorized occupants from such land in accordance with the said scheme. Needless to state that, on such a scheme being prepared and notices being issued to those in possession of the land in terms of the scheme so formulated, it is open to persons in possession of such land, to whom the notices are given, to put forth all such defenses as are available to them in law including that the subject land, over which they are in possession, has not been a water body after the 1950 Act came into force.
19. This writ petition is, accordingly, disposed of with the aforesaid observations.
(R.C. Khulbe, J.) (Ramesh Ranganathan, C.J.)
03.12.2018 03.12.2018
No comments:
Post a Comment