HIGH COURT OF JUDICATURE AT ALLAHABAD
Case :- WRIT - C No. - 22794 of 2020
Petitioner :- Maa Sharda Seva Samiti
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Pradeep Singh Sengar, Ajitabh Choubey,B.B.Rai
Counsel for Respondent :- C.S.C.
with
Case :- WRIT - C No. - 7067 of 2021
Petitioner :- Santosh Kumar Jaiswal
Respondent :- State Of U.P. And 12 Others
Counsel for Petitioner :- Awadesh Tiwari, Gunjan Tiwari
Counsel for Respondent :- C.S.C.
Hon'ble Ajay Bhanot, J.
With consent of parties both the writ petitions pertaining to the same plot of land are being disposed of by a common order. The disputed parcel of land is a pond land.
Bhagwan Prasad, Paras Nath, Visheshwar Nath, Tribhuwan Prasad, Triloki Nath, Tarkeshwar Nath and Nanesh got their names mutated as bhumidhars on the pond land. The mutation was expunged by order dated 21.04.2018. Thereafter the legal heirs of the said persons tried to encroach upon the said land.
Complaints in this regard were made to the police authorities regarding the illegal encroachment upon the pond land. The S.H.O. had forwarded an onsite inspection report to the S.D.M., Ballia, with the endorsement that the encroachment was wholly illegal. The S.D.M., Ballia, passed an order on 02.06.2019 directing an onsite inspection to ensure that the conservation work is not impeded.
In both the writ petitions, the petitioners have not been able to establish their right of possession over the pond in dispute before this Court. The relief for permitting the petitioner to undertake beautification work claim in one writ petition is declined.
Shri B. B. Rai, learned counsel for the private respondent no. 2 namely Sandeep, has not been able to show any title deed of the said respondent over the pond land.
Water bodies like ponds are the natural resources and comprise the collective wealth of the local population as well as the nation at large. Such natural bodies and environmental assets are being subjected to degradation and encroachment. Such encroachment and degradation most often causes irreversible damage to the ecology. The encroachment over such public resources is not countenanced either by the legislature. The officials charged with the duty to investigate and clear such encroachment are under an obligation of law to proceed with dispatch efficiency and in conformity with the provisions of the statute while dealing with issues relating to encroachment over ponds and degradation of natural resources.
The law has set its face against such encroachments and callous attitude of officials towards natural resources. Natural resources are the most precious national treasures and the State officials are their custodians. Regard may also be had to the law laid down in Hinch Lal Tiwari v. Kamala Devi, reported at (2001) 6 SCC 496, Jagpal Singh v. State of Punjab, reported at (2011) 11 SCC 396 and also the judgement rendered by a Division Bench of this Court in the case of Prem Singh Vs. State of U.P. and Others reported at 2012 (11) ADJ 404.
Section 67(2) of the U.P. Revenue Code, 2006 is the response of the legislature to deal with the endemic problem of encroachment over public lands including ponds.
For ease of reference, Section 67 of the U.P. Revenue Code, 2006 is extracted hereunder:
"67 Power to prevent damage, misappropriation and wrongful occupation of Gram Panchayat property.-
(1) Where any property entrusted or deemed to be entrusted under the provisions of this Code to a Gram Panchayat or other local authority is damaged or misappropriated, or where any Gram Panchayat or other authority is entitled to take possession of any land under the provisions of this Code and such land is occupied otherwise than in accordance with the said provisions, the Bhumi Prabandhak Samiti or other authority or the Lekhpal concerned, as the case may be, shall inform the Assistant Collector concerned in the manner prescribed.
(2)Where from the information received under sub-section (1) or otherwise, the Assistant Collector is satisfied that any property referred to in sub-section (1) has been damaged or misappropriated, or any person is in occupation of any land referred to in that sub-section in contravention of the provisions of this Code, he shall issue notice to the person concerned to show cause why compensation for damage, misappropriation or wrongful occupation not exceeding the amount specified in the notice be not recovered from him and why he should not be evicted from such land.
(3)If the person to whom a notice has been issued under sub-section (2) fails to show cause within the time specified in the notice or within such extended time as the Assistant Collector may allow in this behalf, or if the cause shown is found to be insufficient, the Assistant Collector may direct that such person shall be evicted from the land, and may, for that purpose, use or cause to be used such force as may be necessary, and may direct that the amount of compensation for damage or misappropriation of the property or for wrongful occupation, as the case may be, be recovered from such person as arrears of land revenue.
(4)If the Assistant Collector is of opinion that the person showing cause is not guilty of causing the damage or misappropriation or wrongful occupation referred to in the notice under sub-section (2), he shall discharge the notice (5)Any person aggrieved by an order of the Assistant Collector under sub-section (3) or sub-section (4), may within thirty days from the date of such order, prefer an appeal to the Collector.
(6)Notwithstanding anything contained in any other provision of this Code, and subject to the provisions of this section every order of the Assistant Collector under this section shall, subject to the provisions of sub-section (5) be final.
(7) The procedure to be followed in any action taken under this section shall be such as may be prescribed."
Ponds and other natural resources of the community have become vulnerable to degradation by irresponsible human activities. Such encroachments cause irreversible damage. The authorities are under an obligation of law to scrupulously maintain the records and measurements of natural assets of the community. It is also the statutory duty of authorities to ensure that any eviction upon such natural assets is vacated promptly in accordance with law.
At this stage, it would be apposite to fortify the narrative with judicial authorities in point.
In the case of Hinch Lal Tiwari (supra) an issue relating to an encroachment over the public lands and official apathy in vacating such encroachment was posed to the Supreme Court. The Supreme Court considering the importance of public ponds and other natural resources and the onerous duty of the state authorities to bestow unbroken vigilance and restore such natural resources to their original state held so:
"13. It is important to notice that the material resources of the community like forests, tanks, ponds, hillock, mountain etc. are nature's bounty. They maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality life which is the essence of the guaranteed right under Article 21 of the Constitution. The Government, including the Revenue Authorities i.e. Respondents 11 to 13, having noticed that a pond is falling in disuse, should have bestowed their attention to develop the same which would, on one hand, have prevented ecological disaster and on the other provided better environment for the benefit of the public at large. Such vigil is the best protection against knavish attempts to seek allotment in non-abadi sites.
14. For the aforementioned reasons, we set aside the order of the High Court, restore the order of the Additional Collector dated 25-2-1999 confirmed by the Commissioner on 12-3-1999. Consequently, Respondents 1 to 10 shall vacate the land, which was allotted to them, within six months from today. They will, however, be permitted to take away the material of the houses which they have constructed on the said land. If Respondents 1 to 10 do not vacate the land within the said period the official respondents i.e. Respondents 11 to 13 shall demolish the construction and get possession of the said land in accordance with law. The State including Respondents 11 to 13 shall restore the pond, develop and maintain the same as a recreational spot which will undoubtedly be in the best interest of the villagers. Further it will also help in maintaining ecological balance and protecting the environment in regard to which this Court has repeatedly expressed its concern. Such measures must begin at the grass-root level if they were to become the nation's pride."
Concerns over degradation of natural resources and aggressive attempts encroach upon such natural resources in collusion with the state officials was noticed by the Supreme Court in Jagpal Singh(supra). In the case of Jagpal Singh(supra) the Supreme Court deprecating such conduct of the encroachers as well as the state authorities directed the State Government authorities to take efficacious steps to vacate such encroachments and restore the natural resources by holding thus:
"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 rainwater 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 is not used for the common benefit of the villagers but misappropriated by certain individuals. The time has come when these malpractices must stop.
21. In Uttar Pradesh the U.P. Consolidation of Holdings Act, 1954 was widely misused to usurp the Gram Sabha lands either with connivance of the Consolidation Authorities, or by forging orders purported to have been passed by Consolidation Officers in the long past so that they may not be compared with the original revenue record showing the land as Gram Sabha land, as these revenue records had been weeded out. Similar may have been the practice in other States. The time has now come to review all these orders by which the common village land has been grabbed by such fraudulent practices.
22. For the reasons given above there is no merit in this appeal and it is dismissed.
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/unauthorised occupants of the 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 regularising the illegal possession. Regularisation should only be permitted in exceptional cases e.g. where lease has been granted under some government notification to landless labourers or members of the Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land."
Similarly, the Division Bench of this Court in the case of Prem Singh (supra) issued peremptory orders to state authorities to take all necessary action in law and and clear such encroachments expeditiously:
"5.In view of direction noticed in the aforesaid circular, we are of the considered view that if complaints regarding unauthorized occupation over the public ponds or other similar public lands are received by the District Magistrate of a District, he should take all the required actions in view of law already settled in the case of Jagpal Singh and others.
6. In case, the District Magistrate finds some good reasons to seek guidance from the Members Committee indicated in Para-2 of the aforesaid circular, then he may refer the matter and seek guidance in appropriate cases.
7. So far as the present writ petition is concerned, we grant liberty to the petitioner to approach respondents no. 2 and 3 again with a certified copy of this order. The concerned respondents shall get appropriate inquiry made and take required action to protect public ponds as per law laid down by the Apex Court, expeditiously.
8. Let a copy of this order be furnished to the learned Standing Counsel for the State for communication to the Principal Secretary, Revenue, Government of Uttar Pradesh, who shall circulate a copy of this order to all the Divisional Commissioners as well as the District Magistrates so that number of such types of cases coming to this Court may be checked."
The provisions of the statute are clear. The command of the courts is unequivocal.
The District Magistrate, Ballia, is directed to ensure that no constructions or encroachment by any private parties or entity are allowed to happen on the pond land. All steps to protect ecology of the area shall also be taken.
It is clarified that this order is without prejudice to the rights of the parties which may be adjudicated by the competent court. Till such order is passed by a competent court of law, the above directions shall remain operative.
The writ petitions are disposed of finally.
Order Date :- 22.7.2021
No comments:
Post a Comment