Allahabad HC in Ajay Kumar Pandey vs. State of U.P. & Ors. [23.08.2017]

IN THE HIGH COURT OF ALLAHABAD

Writ-C No. 37542 of 2017

Decided On: 23.08.2017

Ajay Kumar Pandey

Vs.

State of U.P. and Ors.

Hon'ble Judges/Coram:

B. Amit Sthalekar, J.

Counsels:

For Appellant/Petitioner/Plaintiff: Rajesh Kumar Srivastava

For Respondents/Defendant: C.S.C.

JUDGMENT

B. Amit Sthalekar, J.

1. Heard Dr. Rajesh Kumar Srivastava, learned Counsel for the petitioner and the learned Standing Counsel for the respondents No. 1 to 3. The petitioner in the writ petition is seeking a direction to the respondents to remove the illegal construction made by the respondent No. 4 over Khata No. 00544 in Khasra No. 471 area 1.0840 hectares situated in Village-Mardapur Post, Saidabad, Pargana-Mah Tehsil Handia District, Allahabad which according to him is recorded in the revenue record as pond. Relevant copy of the revenue record has been filed as Annexure-1 to the writ petition. The petitioner is stated to have filed a representation before the respondent No. 3-Sub-Divisional Magistrate, Handia, Allahabad on 3.3.2017, Annexure-4 to the writ petition, but it is stated that no order has been passed thereon.

2. The learned Counsel for the petitioner has placed reliance on a Division Bench judgment of this Court in Public Interest Litigation Petition No. 63380 of 2012 (Prem Singh v. State of U.P. and others) wherein the Division Bench has directed that if the complaints regarding unauthorised 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 the law already settled by the Supreme Court in the case of Jagpal Singh and others v., State of Punjab and others 2011 (85) ALR 500 (SC). Paragraphs 13, 15, 16, 18, 23 and 24 of Jagpal Singh (supra) read 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.

15. In M.I. Builders (P) Ltd. v. 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 ` 100 crores.

16. In Friends Colony Development Committee v. 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.

18. The present is a case of land recorded as a village pond. This Court in Hindi Lal Tiwari v. Kamala Devi 2001 (92) RD 689 (SC), (followed by the Madras High Court in L. Krishnan v. State of Tamil Nadu 2005(4) CTC 1 (Mad.),) 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 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.

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.

24. Let a copy of this order be sent to all Chief Secretaries of all States and Union Territories in India who will ensure strict and prompt compliance of this order and submit compliance reports to this Court from time to time."

3. No useful purpose would be served by keeping this writ petition pending. The writ petition is therefore, disposed of with the consent of the learned Counsel for the parties with a direction to the respondent No. 3-Sub Divisional Magistrate, Handia District Allahabad to enquire into the matter and pass appropriate orders keeping in mind the judgment of the Supreme Court in the case of Jagpal Singh (supra) as well as the judgment of the Division Bench of this Court passed in Public Interest Litigation Petition No. 63380 of 2012 (Prem Singh v. State of U.P. and others) within a period of three months from the date of receipt of a certified copy of this order in his office.