IN THE HIGH COURT OF ALLAHABAD
Writ C. No. 59214 of 2017
Ram Khyal Singh and Ors.
Vs.
State of U.P. and Ors.
B. Amit Sthalekar, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Babita Shukla and Ram Prakash Shukla
For Respondents/Defendant: C.S.C.
JUDGMENT
B. Amit Sthalekar, J.
1. Heard Sri A.K. Dwivedi, learned Counsel holding brief of Sri R.P. Shukla for the petitioner and the learned Standing Counsel for the respondents No. 1 to 3. The petitioner is seeking quashing of the orders dated 29.11.2016 and 7.10.2016 arising out of proceedings under section 122-B of the U.P. Z.A. & L.R. Act, 1950. The proceedings were initiated against the petitioner on the ground that the petitioner has illegally occupied the land which was demarcated as pond. The plot in dispute is recorded in the revenue record as pond land. The case of the petitioner was that plot adjacent to plot No. 316 was used for digging mud and the nature of the land was also pond and on this land the petitioner's father made a construction of tin shade. His contention further is that the land was declared as abadi The contention of the petitioner was rejected by the Tehsildar, Gyanpur by order dated 7.10.2016 holding that the land was demarcated as pond land and therefore, the possession of the petitioner over the land was wholly illegal. Aggrieved the petitioner preferred an appeal and in appeal also his plea was that an application was moved by his mother on which an order was passed for conversion of this land into abadi. What, however, could not be disputed by the petitioner was that the land in question was a pond and fell within the definition of land mentioned in section 132 of the U.P. Z.A. & L.R. Act of which no allotment could be made in favour of any person. Even if, the mother of the petitioner had moved an application in 1993 and an order had been passed for permanent change of nature of land such an order could not grant any right in favour of the petitioner as no conversion of land was permissible being land under section 132 of the Act, 1950.
2. Encroachment upon public land as pond etc. has been seriously deprecated by the Supreme Court in the case of Hitich Lal Tiwari v. Kamala Devi, 2001 (92) RD 689 (SC) which has been followed by the Madras High Court in L. Krishnan v. State of Tamil Nadu 2005 (4) CTC 1 Mad
3. A Division Bench of this Court in Public Interest Litigation Petition No. 63380 of 2012 (Prem Singh v. State of U.P. and others) 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.
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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.
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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.
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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."
For reasons aforesaid, I do not find any illegality or infirmity in the impugned orders. The writ petition lacks merit and is accordingly dismissed.
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