NGT in Dedharota Grampanchayat vs. Member Secretary, SLEIAA [11.06.2021]

BEFORE THE NATIONAL GREEN TRIBUNAL

PRINCIPAL BENCH, NEW DELHI

(By Video Conferencing)

Appeal No. 61/2017

With I.A. No. 06/2021

Dedharota Grampanchayat                                                                 Appellant

Versus

Member Secretary, SLEIAA, Gujarat & Ors.                             Respondent(s)

CORAM: HON’BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON’BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON’BLE MR. JUSTICE M. SATHYANARAYANAN, JUDICIAL MEMBER
HON’BLE MR. JUSTICE BRIJESH SETHI, JUDICIAL MEMBER
HON’BLE DR. NAGIN NANDA, EXPERT MEMBER

Respondent(s): 1. Mr. Gurang Vaghela, Advocate for Respondents No. 5 & 6.
Mr. Maulik Nanavati, Advocate
Mr. Maulin Raval, Senior Advocate with Ms. Aditi, Advocate

ORDER

1. This appeal has been preferred against grant of Environmental Clearance (EC) by the SEIAA, Gujarat vide letter dated 15.03.2017 in favour of Alimiya Imam Ali Saiyad and Dedhorata Bauxite Mine for Bauxite Mine of Dedhrota Bauxite Mine (Lease Area 200000 Ha) at S. No. 335/1 part, Village Dedhrota, Tehsil Himmatnagar, District Sabarkantha, Gujarat.

2. The appeal was filed on 22.05.2017 and was admitted on 23.05.2017. The points raised in the appeal inter-alia are that land in question is on the bank of Sabarmati river on the hill of Bauxite Stones. Mining will affect the hill. The flood water will wash away the Gaucher (grazing) land and the standing crops. The inhabitants of the village objected to the grant of EC during the public hearing and also filed writ petitions in the High Court being Writ Petition (PIL) No. 192/2015, Zala Vikramsinhji Kishorsinhji & Ors. v. Alimiya Imam Ali Saiyal & Ors., and Writ Petition (PIL) No. 86/2017, Dedharota Gram Panchayat & Ors. v. State of Gujarat & Ors. which were disposed of on 21.09.2015 and 27.06.2017 respectively. On the issue of allotment of grazing land, it was observed that challenge had to be raised separately before an appropriate forum.

3. During pendency of the Appeal, the appellant has filed I.A. No. 06/2021 on 07.01.2021 to withdraw the appeal on the ground that vide order dated 18.06.2020 the nature of the land has been changed. The previous Sarpanch has been removed by order dated 15.09.2020 of the District Development Officer, in pursuance of order of the High Court in Writ Petition No. R/SCA No. 6784/2020. The Panchayat under the new Sarpanch has decided to withdraw the appeal on the ground that the land in question is no longer the grazing land.

4. In view of above developments, while the nature of land may have undergone change as mentioned above, and there can be no objection to withdrawal of the appeal, mitigation measures during the mining as per EC conditions and mining and Environment plans needs to be ensured by the Department of Mining, Gujarat, the State PCB and District Magistrate, Sabarkantha. The District Magistrate needs to act as the nodal agency for compliance and coordination. If any grievance survives on this issue, it will be open to the aggrieved party to take remedies as per law.

The appeal and I.A. No. 06/2021 are disposed of accordingly.

June 11, 2021

Allahabad HC in Pachchu vs. State of U.P. & Ors. [15.09.2021]

IN THE HIGH COURT OF ALLAHABAD

Writ C. No. 9218 of 2016

Decided On: 15.09.2021

Pachchu

Vs.

State of U.P. and Ors.

Hon'ble Judges/Coram: Ajay Bhanot, J.

Counsels:
For Appellant/Petitioner/Plaintiff: Ajay Kumar Srivastava and Sanjay Kr. Srivastava
For Respondents/Defendant: C.S.C., Brij Kumar Yadav, Saurabh Srivastava and Sharad Chand Rai

ORDER

Ajay Bhanot, J.

1. Heard Shri Ajay Kumar Srivastava, learned counsel for the petitioner, Shri Sharad Chand Rai, learned counsel for the respondent no. 6 and the learned Standing Counsel for the State.

2. By the impugned order dated 04.03.2014 passed by the trial court in proceedings taken out under Section 202 of the U.P. Z.A. & L.R. Act, 1950, directions to evict the petitioner from the disputed parcel of land have been issued with a further direction to make the necessary mutations in the revenue records. The appellate court in the impugned judgment dated 24.07.2015 rendered under Section 331(3) of the U.P.Z.A. & L.R. Act, 1950 has agreed with the findings of the trial court and affirmed its judgment.

3. Both the courts below in the impugned orders have returned the following concurrent findings of fact.

4. The disputed parcel of land was recorded under category 3 in the Khatauni. Category 3 is an arrangement of holdings described in the U.P. Land Records Manual as land held by Asamis.

5. The aforesaid entry was examined and upheld in the consolidation proceedings. CH Form 45 issued at the conclusion of the consolidation proceedings testifies that entries which are consistent with the earlier records. Clause 3 category lands, as the provision discloses, belong to the Gaon Sabha. The disputed parcel of land is a pond area.

6. Rights of the petitioner are at best those of an Asami pattedar and no more. The rights of Asami pattedar are described and limited under Section 176 of the U.P. Z.A. & L.R. Act, 1950. The term of the Asami Patta granted to the petitioner/predecessor-in-interest of the petitioner has long expired. The courts below have found that after expiration of the period of Patta and its non renewal, the petitioner does not have any right to retain possession over the land. These findings of fact could not be successfully disputed before the courts below.

7. In this manner the petitioner was found to be in illegal occupation and his eviction was ordered under the relevant provisions of law by the impugned order dated 04.03.2014 passed by the learned trial court and the order dated 24.07.2015 passed by the learned appellate court.

8. For ease of reference relevant provisions of the Land Records Manual are extracted as under:

"A-124. Arrangement of holdings - The arrangement of land within each village in the khatauni shall be follows:

Part-I

(1) Land cultivated by Government of Gaon Samaj or any other local authority entrusted with management of land under Section 117-A of the U.P. Zamindari Abolition and Land Reforms Act, 1950.

-----

-----

(3) Land held by Asamis who occupied or held land-

(a) as non-occupancy tenants of pasture land, or of land covered by water and used for the purpose of growing singhara and other produce, or land in the bed of river and used for casual or occasional cultivation, on the date immediately preceding the date of vesting;

(b) as non-occupancy tenants of land which the State government had, before the date of vesting, declared by the notification in the Gazette as part of a tract of shifting and unstable cultivation;

(c) as non-occupancy tenants of land which the State Government had, before the date of vesting, declared by notification in the Gazette to be intended or set apart for taungia plantation or community orchard or village farm or trenching grounds belonging as such to a local authority;

(d) on being admitted, on or after the date of vesting by the Gaon Samaj, as a lessee of land mentioned in sub-classes (a) to (c) above;

(e) as thekedars who become Asamis under the proviso to sub-section (3) of Section 13 of the U.P. Zamindari Abolition and Land Reforms Act, 1950."

9. The procedure for eviction of illegal occupants is laid out in Section 202 of the U.P. Z.A. & L.R. Act, 1950. The provision is extracted hereunder for ease of reference:

"202. Procedure of ejectment of Asami.-Without prejudice to the provisions of Section 338, an Asami shall be liable to ejectment from his holding on the [suit of the [Gaon Sabha] or the land-holder as the case may be] on the ground or grounds-

(a) mentioned in Section [* * *]; 191 or 206,

[(b) that he-

(i) belongs to any of the classes mentioned in Clauses (a), (b), (c), (e), (g) or (i) of sub-section (1) of Section 21 or sub-section (2) of the said section or in Clause (c) or (d) of Section 133; or

(ii) has acquired the rights of an Asami under the Uttar Pradesh Land Reforms (Supplementary) Act, 1952;

and that he holds the land from year to year or for a period which has expired or will expire before the end of the current agricultural year,]

(c) that he belongs to the class mentioned in [Clause (d) of sub-section (1) of Section 21] and the mortgage has been satisfied or the amount owing under the mortgage has, whether or not it has become payable thereunder, been deposited in Court,

(d) that he [is an Asami under Section 11] and the right to maintenance allowance does not any longer subsist;

(e) that he belongs to the class mentioned in clause (j) of sub-section (1) of Section 21 and that the cultivation of agricultural crops has become impossible.

(f) that he belongs to the class mentioned in Clause (h) of [sub-section (1) of Section 21] or Clause (b) of Section 133 and that-

(i) the land-holder wishes to bring the land under his personal cultivation and in cases where the lease is for a fixed term such term as expired; or

(ii) the disability has determined,

(g) that he [is an Asami under Section 13] and the period mentioned in Clause (a) of sub-section (2) of [the said section] has expired;

(h) that there is an unsatisfied decree of arrears of rent outstanding against him and such decree can be executed by ejectment."

10. First ground of challenge is that the petitioner has been in possession since the year 1950. The argument has been made to be rejected. The factum of possession of the petitioner since 1950 over the disputed parcel of land was apparently not raised before the consolidation authorities. In any case, the consolidation courts have not found in favour of the possession of the petitioner. Form CH 45 is not in any manner incompatible with the judgment of the consolidation authorities. The consolidation proceedings have been attained finality. Moreover, this is a disputed question of fact which cannot be examined in writ jurisdiction by this Court at this stage, since no perversity has been established in the findings of the courts below.

11. The second fault line in the impugned orders, according to the learned counsel for the petitioner is that the patta is not in the record. In the revenue records Asami patta entry has been existing since long. Long standing revenue entries have a presumption of correctness in their favour. Of course, this is a rebuttable presumption, but the petitioner has failed to adduce any credible evidence to refute such presumption. The finding that the disputed parcel was land comprised in an Asami patta is thus upheld.

12. Before this Court no perversity in the findings has been pointed out from the records. The learned courts below have observed full procedural propriety. Conclusions reached by the learned courts below are reasonable and achieve the applicable standards of evidence. In fact all relevant facts on the foot of which the impugned orders were passed are admitted by the petitioner. The process for holding the petitioner to be an illegal occupant cannot be faulted. The procedure for directing eviction of the petitioner being an illegal occupant has been strictly followed.

13. Before parting, this Court would like to examine the importance of ponds as part of ecological heritage of an area. Water bodies like ponds are natural resources that comprise the collective wealth of the local population as well as the nation at large. These natural bodies and environmental assets are being subjected to degradation and encroachment. Such encroachment and degradation most often causes irreversible damage to the ecology.

14. 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.

15. At this stage, it would be apposite to fortify the narrative with judicial authorities in point.

16. In the case of Hinch Lal Tiwari Vs. Kamla Devi and others, reported at (2001) 6 SCC 496, 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 thus:

"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."

17. 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 v. State of Punjab, reported at (2011) 11 SCC 396. 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 setting forth the following holdings:

"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."

18. Similarly, the Division Bench of this Court in the case of Prem Singh v. State of U.P. and others, reported at 2012 (11) ADJ 404 issued peremptory orders to state authorities to take all necessary action in law 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."

19. In wake of the preceding discussion, no interference is called for in the impugned order. The writ petition is liable to be dismissed and is dismissed.

20. The District Magistrate is ordered to forthwith resume possession over the disputed parcels of land and restore the pond to its original pristine stage, within a period of six months from today.

21. Learned Standing Counsel to serve a copy of this order upon the District Magistrate, Kanpur Dehat, for compliance.

Allahabad HC in Baba Sukkhu Maa Prabhudevi Inter College & Ors. vs. State of U.P. & Ors. [01.11.2019]

IN THE HIGH COURT OF ALLAHABAD

Civil Misc. Writ Petition No. 27953 of 2018, Writ-C No. 27278 of 2019 and Writ C No. 31241 of 2019

Decided On: 01.11.2019

Baba Sukkhu Maa Prabhudevi Inter College and Ors.

Versus

State of U.P. and Ors.

Hon'ble Judges/Coram: Anjani Kumar Mishra, J.

Counsels:

For Appellant/Petitioner/Plaintiff: Bhola Nath Yadav and Abhishek Kumar Yadav

For Respondents/Defendant: C.S.C., Manoj Kumar Yadav and Ravindra Nath Yadav

JUDGMENT

Anjani Kumar Mishra, J.

1. Heard learned Counsel for the parties.

2. Writ petition No. 27953 of 2018 arises out of proceedings under section 67 of the U.P. Revenue Code, 2006 and seeks a writ of certiorari for quashing the order dated 6.7.2018 passed by the Tehsildar ordering eviction of the petitioner and the order dated 4.7.2018 passed by the Collector, Jaunpur affirming the order of the Tehsildar.

3. The case of the petitioner is that on 16.8.1996, a resolution was passed by the Gaon Sabha/Land Management Committee that plot No. 233 area 3.95 and plot No. 232 area 0.40 of village Golhapur, Pargana Anguli, Tehsil Shahganj, District Jaunpur be allotted to the petitioner for establishing a School.

4. Plot No. 233 in the resolution is stated to be recorded as pasture land while the plot No. 232 is stated to be reserved for plantation of trees but Educational work is being carried out over it.

5. It is stated that on the basis of the aforesaid resolution, on a time Barred objection under section 9, the Consolidation Officer reserved the plots in the name of the petitioner institution. It is stated that thereafter, the School was constructed thereon and as on date about 600 students are being imparted education.

6. An application for recall of the order was passed by the Consolidation Officer filed by the intervener in this writ petition, represented by Shri R.N. Yadav, was allowed and the order passed by the Consolidation Officer was recalled.

7. Against this order, the petitioner filed a recall application, which was rejected.

8. Thereafter, the petitioner filed two revisions; one against the order allowing the restoration application of the intervener and the other against the order rejecting his application for recall of the said order. Both these revisions are stated to be pending.

9. It appears that on 17.1.2018, a notice under section 67 of the U.P. Revenue Code, 2006 in RC Form 20 was issued to the petitioner.

10. In these proceedings, the Tehsildar vide order dated 16.4.2018, ordered eviction of the petitioners. The consequential appeal has been dismissed, vide order dated 4.7.2018, which orders are impugned in this writ petition.

11. The contention of Counsel for the petitioner is that the land had been allotted/gifted to the institution by the resolution of the Gaon Sabha and consequent thereto an order was passed in favour of the petitioner by the Consolidation Officer.

12. In pursuance of the aforementioned, the School has been established and is running. The order recalling the order passed by the Consolidation Officer, is impugned in a revision, which is pending consideration and therefore, the matter of allotment is yet to attain finality.

13. It is next contended that a large amount of money has been spent in establishing the institution. Therefore, the impugned orders, if allowed to stand shall occasion failure of justice.

14. It is lastly contended that the petitioner has filed an application under section 101 of the U.P. Revenue Code, 2006 for exchange of the land over which, the petitioner institution is situated with bhumidhari land of the petitioner No. 2. This application as also pending consideration.

15. In view of the submissions, a prayer for allowing the writ petition has been made.

16. Shri R.N. Yadav, Counsel appearing for the intervener has submitted that the petitioner has encroached upon land of public utility, namely, pasture land as also the land, which was reserved for plantation of trees. The Gaon Sabha has no jurisdiction or power to pass a resolution for allotting land to a private institution or of gifting it to a private institution. Any allotment on the resolution of the Gaon Sabha, requires the approval of the Sub-Divisional Officer, which has never been granted. Therefore, there is no gift or lease of the land in issue in favour of the petitioner.

17. It is next contended that although the case of the petitioner is that an application for exchange is pending consideration, however, no exchange is possible because only a bhumidhar can exchange his land. The petitioner No. 2 is possessed of only 0.102 hectare of land, which, in any case, is recorded in the name of her husband.

18. It is also stated that the resolution of the Gaon Sabha in any case were absolutely illegal because, the petitioner No. 2 as also her husband Sher Bahadur Yadav were at various point of time, Pradhan of the village. The resolution is wholly collusive and fraudulent at the instance of the erstwhile and present Pradhans.

19. Counsel for the petitioner has placed reliance upon the decision of the Division Bench of this Court in Committee of Management, Durga Narain College and Adity Kumari School and others v. State of U.P. and others MANU/UP/2990/2018 : 2018 (140) RD 510, in support of his case.

20. I have considered the submission made by Counsel for the parties and perused the record.

21. In so far as the resolution of the Gaon Sabha dated 16.08.1996 is concerned, the same cannot confer any right upon the petitioner institution. This is so because the Gaon Sabha cannot gift any land to anyone. The Goan Sabha, at best can grant a lease of agricultural land. However, such lease is to be in accordance with the provisions contained in section 198 of the U.P. Zamindari Abolition and Land Reforms Act, after following the order of preference prescribed for grant of such lease. A resolution for an allotment of the Land Management Committee necessarily requires approval of the Sub-Divisional Officer. Admittedly, in the case at hand, despite a resolution having been passed in favour of the petitioners, there is no approval of the Sub-Divisional Officer. The resolution therefore, for all practical purposes, is. waste paper.

22. For the same reason, the order of the Consolidation Officer in favour of the petitioner dated 23.10.1996, relying upon the aforesaid resolution, is patently illegal and wholly without jurisdiction. Therefore, this order has rightly been set aside on a restoration application filed by the intervener.

23. Although, the petitioner has challenged the order allowing the recall application by means of a revision, which is stated to be pending, yet this Court, in the facts and circumstances of this case is not inclined to interfere in the orders impugned on this ground, alone. The revision in my considered opinion, necessarily has to fail for the reasons already given herein-above.

24. The very fact that the proceedings under section 67 of the U.P. Revenue Code, 2006 were initiated against the petitioner shows that the land, despite the order passed by the Consolidation Officer on 23.10.1996, continues to be recorded in the name of the Gaon Sabha. The petitioners therefore, are wholly unauthorized occupants.

25. This situation is further compounded by the fact that the land over which, the institution is running is public utility land, governed by the provisions of section 132 of the, U.P. Zamindari Abolition and Land Reforms Act and/or the parallel provisions contained in section 77 of the U.P. Revenue Code, 2006.

26. In so far as the application for exchange under section 101 of the U.P., Revenue Code, 2006 filed by the petitioner is concerned, the same has been dismissed vide order dated 23.5.2018 passed by the Sub-Divisional Officer. Although, it is stated that a revision against this order is pending consideration before the Commissioner, Varanasi Division, Varanasi, this Court does not consider it appropriate to interfere with the impugned orders on the plea aforesaid because no rights can accrue in favour of any person over land which is land of public utility as is the situation in the case at hand. The embargo in this regard under the U.P. Zamindari Abolition and Land Reforms Act was absolutely categorical. However, this embargo has been watered down to an extent by the proviso to section 101(2) of the U.P. Revenue Code, 2006.

27. In view of the proviso, the State Government can permit exchange also of land of public utility, but on the matter being referred to it by the Sub-Divisional Officer. No reference has been made by the Sub-Divisional Officer. The Sub-Divisional Officer has, in fact, rejected the application for exchange. Therefore, the proviso aforementioned does not come into play in the case at hand.

28. Even otherwise, this Court has in earlier decision in Writ Petition No. 26070 of 2019 Amur Nath Singh v. State of U.P. and others decided on 20.8.2019 held that the proviso stipulates that the State Government may permit exchange of land of public utility on conditions and in the manner prescribed. However, the rules framed thereunder are absolutely silent with regard to the manner in which, the power is to be exercised by the State Government. The power provided to the State Government by the proviso aforesaid can be exercised only after relevant provisions have been incorporated in the rules and or the existing rules are suitably amended/modified.

29. In view of the foregoing discussion, the impugned orders call for no interference. The writ petition is without merit and the petitioners claim found to be based on fraud.

30. For the same reason, no benefit can be granted to the petitioners decision of the Apex Court in Jagpal Singh and others v. State of Punjab and others 2011 (113) RD 329 (SC).

31. The writ petition No. 27953 of 2018 is accordingly liable to be dismissed.

32. The connected writ petition No. 27278 of 2019 has been filed for implementation of the orders impugned in Writ Petition No. 27953 of 2018 above has been held liable to be dismissed. The respondents are therefore, liable to be directed to execute the orders, which stand affirmed upon dismissal of the writ petition No. 27953 of 2018, expeditiously.

33. Writ Petition No. 31241 of 2019 arises out of an application for exchange filed by the respondent No. 5 who is petitioner No. 2 in Writ Petition No. 27953 of 2018.

34. This petition has been filed seeking the following relief:-

"(I) Issue a writ order or direction in the nature of mandamus commanding and directing the respondents/authorities specially respondent No. 1 not to undertake any proceedings to exchange the pasture land to the extent of area 0.821 Hectare from the Land Gata No. 326 total area 1.598 Hectare with the private owner of a school i.e. Baba Sukkhu Maa Prabu Devi Inter College Golagaur, Jaunpur in pursuance of recommendations dated 28.8.2018 and 8.3.2019 passed by one R.B. Singh, Joint Secretary U.P. Shashan as eviction order dated 16.4.2018 has been passed and the same has been affirmed by appellate order dated 4.7.2018 and exchange proceedings has been rejected vide order dated 23.5.2018."

35. This is so because an application for exchange filed by the respondent No. 5 Was rejected by the Sub-Divisional Officer and against that a revision is stated to be pending. The respondent No. 5 is the present Pradhan of the village. The order dated 23.5.2018 rejecting the application for exchange has been challenged before the Commissioner, Varanasi Division, Varanasi.

36. The contention of Counsel for the petitioner is that wrongly and illegally, the State Government at the behest of the respondents is trying to interfere in the proceedings. The Joint Secretary, State of U.P. has written a letter dated 3.3.2019 addressed to the Commissioner and Secretary Board of Revenue calling for a report with regard to proceedings under section 101 for exchange. It is sought to be contended that this report has been called for to enable the Government to exercise the powers conferred by sub-rule 4 of Rule 102. Proviso to section 101 empowers the State Government to permit exchange of land, which is land of public utility having been entrusted to the Gram Panchayat or a local authority under section 59 of the U.P. Revenue Code, 2006 or is reserved for planned use or is land wherein bhumidhari rights cannot accrue, on the conditions and in the manner prescribed. Prescription necessarily has to be under the Rules. The relevant rule in this regard is Rule 102 of the U.P. Revenue Code Rules, 2016.

37. The said provision as also the corresponding Rules 102 has been considered in the judgment dated 20.8.2019 passed in Writ C No. 26070 of 2019 (Amar Nath Singh v. State of U.P. and 6 others). It has been held therein that the procedure for dealing with a reference made to the State Government by the Sub-Divisional Officer in proceedings under section 101 of the U.P. Revenue Code/2006 has not been provided under the Rules. It has been observed as follows:-

"Moreover, since the rules namely the U.P. Revenue Code Rules 2016 do not provide the manner in which the State Government is required to deal with an application for exchange referred to it by the Sub Divisional Officer, the power conferred by the proviso to section 101(2) cannot be exercised."

38. Further in the operative portion of the judgement, the following direction has been issued:-

"Learned Standing Counsel is directed to ensure that a copy of this order is forwarded to the competent authorities in the State Government, advising them to desist from exercising the power conferred by the proviso to Section 101 (2) of the U.P. Revenue Code, 2006 till such time the U.P. Revenue Code Rules, 2016 are suitably modified/amended, prescribing the conditions and procedure for exercise of the said power."

39. Under the circumstances, Writ Petition No. 31241 of 2019 is disposed of in the terms of the directions issued in Writ C No. 26070 of 2019, wherein the State Government has been directed to desist from exercising the power conferred by the proviso to section 101(2) of the U.P. Revenue Code, 2006, till such time, the U.P. Revenue Code Rules, 2016 are suitably modified/amended, prescribing the conditions and procedure for exercise of power conferred by proviso to section 101(2).

40. Writ Petition No. 27953 of 2018 is dismissed while Writ Petition No. 27278 of 2019, stands disposed of directing the respondents to execute the orders which stand affirmed due to dismissal of Writ Petition No. 27953 of 2018 within four weeks of a certified copy of this order being filed before them.

J&K High Court in Mohammad Sultan Bhat & Ors. vs. UT Of J&K & Ors. [08.11.2021]

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR 

WP (C) No. 2260/2021 

CM No. 7301/2021 

Mohammad Sultan Bhat & Ors.                                     ...Petitioner/applicant(s) 

Through: Mr. Asif Ahmad Bhat, Advocate. 

V/s 

U.T. of J&K & Ors. ...Respondent(s)

CORAM: HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE 

ORDER 

08.11.2021 

Grievance of the petitioner is that despite approaching the Dy. Commissioner, Baramulla through representations, annexure-II and annexure IV to the writ petition for removal of illegal encroachment on the Khachar-i-Charie land falling under Khasra No. 3399 of village Tapper Bala, Varipora, Pattan, Baramulla, no action has been taken by the respondent-authorities. It is also urged that an application was also moved to the Divisional Commissioner, Kashmir and in this regard the Divisional Vigilance Officer, Additional Commissioner, Kashmir addressed a communication dated 20.09.2021, to Sub-Divisional Magistrate, Pattan for removal of illegal encroachment within seven days and directed for filing the action taken report with proof in the form of videography through a special messenger, however, no action has been taken till date leaving no option for the petitioner but to file the present writ petition.

Heard learned counsel for the petitioner and having regard the averments made in the writ petition, this writ petition is disposed of with a direction to the respondent-authority to preserve the Khachari-iCharie land from illegal encroachment falling under survey No. 3399 situated in Tapper Bala, Varipora, Pattan, Baramulla, keeping in mind the Judgment of the Hon'ble Supreme Court in a case titled Jagpal Singh & Ors. v. State of Punjab & Ors on 28th January, 2011. Disposed of. 

Andhra Pradesh HC in B. Murali Reddy vs. State Of Andhra Pradesh [22.07.2021]

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY 

WRIT PETITION NO.14179 OF 2021 

Date: 22.07.2021 

ORDER

This writ petition is filed under Article 226 of the Constitution of India seeking the following relief:-

"....to issue an appropriate writ, order or direction more particularly one in the nature of writ of mandamus, declaring the action of respondents in trying to construct Rythu Bharosa Kendram (RBK) or any other structure by de-notifying or de- classifying or allotting the burial ground being used by the Petitioners and Village people at large in Sy.No.75/4 in an extent of Ac.1.68 cents by encroaching the water body (Kalava Poramboke & Vagu Paramoboke) in Sy.Nos.75/3 and 74/3 situated in Lakshmipuram Village, Mogili Gram Panchayath, Bangarpalyam Mandal, Chittoor District for any other purpose without following due process of law as illegal and arbitrary and pass such other order..."

2. The apprehension of petitioners is that the respondents 3 and 4 herein are converting the land classified as "burial ground‟ and "kaluva poramboke‟ in Sy.Nos.75/4, 75/3 and 74/3 of Lakshmipuram Village, Mogili Gram Panchayat, Bangarpalyam Mandal, Chittoor District and trying to construct „Rythu Bharosa Kendram (RBK)" or any other structure by de-notifying or de-classifying or allotting the burial ground being used by the petitioners for the said purpose. The said Gram Panchayat appears to have been passed a resolution to protect the properties vested on the Gram Panchayat and thereafter a representation, dated 28.06.2021 was made by the villagers, but no action has been taken till date to protect the properties vested on the Gram Panchayat. The petitioners have also placed on record the adangal for the fasali 1430 relating to Sy.No.75/4 to establish that the land in an extent of Ac.1.68 cents is classified as "burial ground‟ (in columns 12 and 13) and at the same time the land in Sy.No.75/3 in an extent of Ac.0.62 cents is classified as "channel‟ (in columns 12 and 13) and Sy. No.74/3 is also classified as "kaluva poramboke‟ based on the adangals for the fasili 1430 and as per the Field Measurement Book the lands in different survey numbers referred above are classified as "burial ground‟, "channel‟ and "channel poramboke‟ of the same village.

3. The apprehension of petitioners is that the respondents are likely to convert the subject land which is classified as "burial ground‟ and trying to construct Rythu Bharosa Kendram‟ and other constructions. Whereas, learned Assistant Government Pleader for Revenue requested this Court to issue a direction to dispose of the representation submitted by the villagers.

4. It is an undisputed fact that "burial ground‟ and "kaluva poramboke‟ cannot be converted into house sites or cannot be used for the purpose of constructions of any building by the Government, since it is reserved site for community and it cannot be used for any other use as the said land is classified as "burial ground‟ and "Kaluva Poramboke‟, which is communal land and therefore the petitioners and other villagers cannot be deprived of right to use the land as "burial ground‟ and it is the duty of the Government to protect such common land and the same cannot be converted into house sites in view of the judgment of Apex Court in Jagpal Singh and others vs. State of Punjab and others1 wherein it is held in Para 3 as follows:-

Para 3: The protection of common 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 v. Paleduga Anjayya ((1972) 1 SCC 521) SCC Page 529, the Court observed in Para 23 as follows:

 "23. 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 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 principal or any other landholder. Hence those rights cannot be said to have been abrogated by Section 3(c) of the Estates Abolition Act."

5. In pursuance of the judgment of the Apex Court the State of Andhra Pradesh issued G.O.Ms.No. 188, dt. 21-07-2011 laid down certain guidelines for Eviction of Encroachers as follows:-

(i) Where it is brought to the notice that any property of the Panchayat is under occupation of any persons the Executive authority (Panchayat Secretary) shall serve a notice to the party concerned and give a brief hearing before proceeding for eviction.

(ii) Suitable orders shall be passed by the Executive authority (Panchayat Secretary) before actual eviction takes place.

(iii) The Divisional Panchayat Officer will conduct a monthly review of these cases for protecting Gram Panchayat properties in his jurisdiction through monitoring the process of eviction. He will also give periodical reports to District Panchayat Officer, who will review the cases once in two months;

(iv) The Executive authority (Panchayat Secretary) may take necessary assistance from the police as per Section 139 of the Andhra Pradesh Panchayat Raj Act, 1994;

(v) The evicted property of the Gram Panchayat shall be protected by making fencing or by construction a compound wall depending on the value of the property and by displaying a notice board;

(vi) A permanent register on encroachment of Panchayat properties shall be maintained in all Gram Panchayats and the same will be validated in the Gram Sabha and Gram Panchayat meetings at least twice in a year;

(vii) Aggrieved parties may file representations to the Executive Authority (Panchayat Secretary) concerned by marking a copy to the Divisional Panchayat Officer;

(viii) The petitions filed by the aggrieved parties will be mentioned and disposed of by the Divisional Panchayat Officer/District Panchayat Officer.

6. Instead of following these guidelines in G.O.Ms.No.188, dt. 21-07-2011, the respondents are trying to deprive the petitioners from enjoying the right in common property for the benefit of villagers, as „burial ground‟, which is impermissible in view of the law declared in the judgment of Apex Court in Jagpal Singh's case (referred (1) supra).

7. According to Section 55 of the Panchayat Raj, communal property is also deemed to have been vested in the panchayat and the income derived there from can be utilized by the gram panchayat for the benefit of the villagers in common or the holders in common of village land generally or of lands of a particular description or of lands under a particular source of irrigation, shall vest in the gram panchayat and be administered by it for the benefit of the villagers or holders.

8. Section 58 of the Panchayat Raj Act is a special provision to divest the tanks, roads, etc, specified in Sections 53, 54, 55 & 57, including the porambokes namely, grazing grounds, thrashing floors, burning and burial grounds, cattle stands, cart tracks and topes, which are at the disposal of the Government and are not required by them for any specific purpose shall vest in the Gram Panchayat subject to such restrictions and control as may be prescribed. Sub- section (2) of Section 58 says that, the Government may, at any time by notification in the Andhra Pradesh Gazette, direct that any porambokes referred to in sub-section (1) shall cease to vest in the Gram Panchayat if it is required by them for any specific purpose and thereupon such porambokes shall vest in the Government. Therefore, a gazette notification is necessary to divest the property on the government that vested on the gram panchayat. In the absence of any notification issued by the Government divesting Gram Panchayats of any poramboke lands, there cannot be any use of panchayat land by following B.S.O 15(2), the same cannot be assigned to the landless poor for house sites or otherwise. Thus, unless there is a notification by the Government divesting gram panchayat and vesting in Government any property referred above, there cannot be any use of panchayat land for any other purpose. (vide Rythu Seva Sangam, Yenamadurru v. Bhimavaram Municipality4 and Banne Gandhi and others v. District Collector).

9. A similar issue like distribution of gramakantam land which is community land to the landless poor came up for consideration in Sarpanch Palakda Gram Panchayat v. District Collector, where the High Court of Andhra Pradesh held that distribution or assignment of „gramakantam‟ which is community land to anyone by Government without issuing any notification, divesting such land from Panchayat is illegal.

10. However, the question of facts need not be gone into and suffice it to issue a direction to the 2nd respondent to dispose of the representation, dated 28.06.2021 submitted by the petitioners and other villagers in accordance with law keeping in view of the judgments referred above, G.O.Ms.No.188, dt.21-07-2011 and BSO 15(2) within two (02) weeks from today. Meanwhile, both parties are directed to maintain status quo as on date. 2012 (5) ALT 631 2007 (2) ALT 550 1997 (2) ALT 486

11. With the above direction, this Writ Petition is disposed of. There shall be no order as to costs.

As a sequel miscellaneous application, pending, if any, shall also stand closed.

_________________________________________ 

JUSTICE M. SATYANARAYANA MURTHY 

Punjab & Haryana HC in Babu Lal & Ors. vs. State of Haryana & Ors. [06.09.2021]

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CWP No. 10414 of 2021 (O&M)

Decided On: 06.09.2021

Babu Lal and Ors.

Vs.

State of Haryana and Ors.

Hon'ble Judges/Coram:

Augustine George Masih and Ashok Kumar Verma, JJ.

Counsels:

For Appellant/Petitioner/Plaintiff: Lalit Kumar Yadav, Advocate

For Respondents/Defendant: Raman Kumar Sharma, Addl. A.G.

DECISION

Ashok Kumar Verma, J.

1. This writ petition has been filed by the petitioners under Article 226/227 of the Constitution of India seeking Writ of Certiorari for setting aside the order dated 17.03.2021 (Annexure P-4) passed by the Commissioner, Rohtak, whereby revision against the orders dated 20.02.2020 and 14.02.2019 passed by the Collector, Bhiwani and Assistant Collector, 1st Grade, Bhiwani respectively ordering removal of illegal and unauthorised possessions over shamlat land of Gram Panchayat by the petitioners, has been dismissed. A further prayer has been made for staying the execution and operation of the aforesaid orders.

2. The brief facts of the case are that it is a case of the petitioners that the predecessor-in-interest of the petitioners were got settled at village Jui Kalan, Tehsil and District Bhiwani to clean the wastage of the village in the year 1967 and villagers provided some land to them whereupon they started residing by making Kachi and Pucci huts and later on they made pucca construction. They took electricity and water connections to their houses. The Gram Panchayat Jui Kalan moved an application before the District Development and Panchayat Officer and Assistant Collector 1st Class, Bhiwani, under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (for short 'the Act') for removal of encroachment from the petitioners from the land measuring 1 Kanal 13 Marlas situated at village Jui Kalan, Tehsil and District Bhiwani and for restoring the possession thereof to the Gram Panchayat. The Assistant Collector ordered removal of encroachments from the aforesaid panchayat land and to pay a fine of Rs. 5,000/- per head to the Gram Panchayat, vide order dated 14.02.2019 (Annexure P-1). The petitioners filed appeal against the aforesaid order dated 14.02.2019 before Collector, Bhiwani, which was also dismissed vide order dated 20.02.2020 (Annexure P-2). Revision filed against the aforesaid orders before Commissioner, Rohtak Division, Rohtak was also dismissed vide order dated 17.03.2021 (Annexure P-4). Thus, the petitioners have filed this writ petition seeking quashment of the aforesaid orders.

3. Learned counsel for the petitioners, inter alia, submits that the impugned orders passed by the revenue courts are illegal and improper. The petitioners being residents of village, constructed their Pucca houses on small chunk of land which was falling within lal dora of the village. Although that land was vested in Gram Panchayat but the petitioners are in continuous possession of the said land for the last so many years. They also took electricity and water connection to their houses.

4. Learned State counsel has opposed the submissions made by learned counsel for the petitioners by stating that the impugned order is self-speaking and a detailed finding has been given. As per ratio of judgment in Jagpal Singh and others vs. State of Punjab and others, 2011 Vol. 11 SCC 396, the petitioners are trespassers as they have occupied the land belonging to Gram Panchayat.

5. We have considered the submissions made by the learned counsel for the parties and gone through the paper-book.

6. The menace of encroachments on public properties are creeping up day-by-day and creating obstructions to the planned development of the nation. The Hon'ble Supreme Court took serious note of the fact in the case of Jagpal Singh (supra) that in large parts of India, village common land had been grabbed by unscrupulous persons using muscle power, money power or political clout to the extent that in many States such land existed only on paper. It deplored any attempt to regularize illegal construction on this land. It was held that even if the encroachers had built houses on the land, they must be ordered to remove their construction and hand over possession of the land to the Gram Panchayat. It was stressed that Gram Sabha/Gram Panchayat land must be kept for the common use of the residents of the village. In this view of the matter, the Hon'ble Supreme Court observed 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. Regularising such illegalities must not be permitted because it is Gram Sabha land which must be kept for the common use of the villagers of the village.

XXX XXX XXX

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."

The aforesaid propositions have been reiterated by Hon'ble Supreme Court in Joginder and another vs. State of Haryana and others, 2021 (2) R.C.R. (Civil) 109.

7. We are of the considered opinion that the aforesaid ratio of law laid down by the Supreme Court is fully applicable to this case. In this case, the Assistant Collector, Bhiwani, passed a detailed and speaking order dated 14.02.2019 (Annexure P-1). Before passing the said order, a spot inspection of the disputed land was conducted. The petitioners were found to be in illegal possession of shamlat land of Gram Panchayat within revenue estate of village Jui Kalan. Assistant Collector came to the conclusion that great loss has been suffered by the Gram Panchayat. Accordingly, he ordered removal of encroachments from the said panchayat land. Even Collector, Bhiwani dismissed the appeal of the petitioners by passing a detailed and speaking order dated 20.02.2020 (Annexure P-2) wherein he recorded that full opportunity has been provided to the petitioners and maintained the removal of encroachments from the petitioners. Further, the revision filed against the aforesaid orders has also been dismissed vide a detailed order dated 17.03.2021 (Annexure P-4) passed by the Commissioner, Rohtak Division, Rohtak. From the perusal of the revenue record, it is clear that as per Jamabandi of Jui Kalan for the year 2008-09, Khasra No. 151, 152 and 153, total area measuring 8 Kanals, 13 Marlas, Gair Mumkin, Panchayat Ghar, Dharamshala, Premises of Well in the column of ownership Gram Panchayat is recorded and the land in question has been demarcated, according to which the petitioners have been found to be trespassers being in illegal occupation of the land in question.

8. In this view of the matter, we find no ground to interfere with the findings recorded by the revenue courts below. There is no illegality and impropriety in the impugned orders. Accordingly, the writ petition is dismissed.

Bombay High Court in Valmik vs. State of Maharashtra [29.10.2021]

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

PUBLIC INTEREST LITIGATION NO. 35 OF 2021 

Valmik S/o Pandharinath Wakcharue & Anr. ..PETITIONER 

Versus 

The State of Maharashtra & Ors. ..RESPONDENTS 

WITH 

CIVIL APPLICATION NO.7732 OF 2021 

IN 

PUBLIC INTEREST LITIGATION NO. 35 OF 2021 

Rajendra Ratan Thete and Ors. ..APPLICANTS 

Versus 

Walmik Pandharinath Waghcaure ..RESPONDENTS 

... 

Mr. R. G. Ambetkar, Advocate for the Petitioners. 

Mr. P. K. Lakhotiya, AGP for Respondents-State. 

Mr. N. V. Gaware, Advocate for Applicants in CA. 

... 

WITH 

WRIT PETITION NO.6487 OF 2021 

Kailas Chandrabhan Waman and Ors. ..PETITIONERS 

Versus 

The State of Maharashtra and Ors. ..RESPONDENTS 

WITH 

WRIT PETITION NO.6488 OF 2021 

Ganesh Dilip Nehe and Ors. ..PETITIONERS 

Versus 

The State of Maharashtra and Ors. ..RESPONDENTS 

WITH

WRIT PETITION NO.6489 OF 2021 

Ranjandas Karbhari Wackchaure and Ors...PETITIONERS 

Versus 

The State of Maharashtra and Ors. ..RESPONDENTS 

WITH 

WRIT PETITION NO.6490 OF 2021 

Ashok Raghu Nehe and Ors. ..PETITIONERS 

Versus 

The State of Maharashtra and Ors. ..RESPONDENTS 

WITH 

WRIT PETITION NO.8188 OF 2021 

Shivaji Bakru Nehe and Ors. ..PETITIONERS 

Versus 

The State of Maharashtra and Ors. ..RESPONDENTS 

... 

Mr. N. V. Gaware, Advocate for the Petitioners. 

Mr. P. K. Lakhotiya, AGP for Respondent Nos.1 to 3, 5 and 6. 

... 

CORAM : S. V. GANGAPURWALA & 

                 R. N. LADDHA, JJ.

Closed for Orders on : 01.10.2021.

Order Pronounced on : 29.10.2021 

JUDGMENT (Per S. V. Gangapurwala, J.) :-

1. All these matters are based on similar set of facts, as such are decided by a common judgment.

2. Public Interest Litigation No.35 of 2021 is filed seeking directions against respondents-authorities to remove the encroachments over the public property that is gairan land and public way bearing Gut No.447 and 448 at village Dhondewadi, Post Jawalke, Tq. Kopargaon, Dist. Ahmednagar. The Writ Petitions are filed challenging the communication issued by the Sub Divisional Officer, Tahsildar and Block Development Officer directing the demolition/removal of 51 structures from Gut No.447 of village Dhondewadi.

3. The petitioners in Public Interest Litigation No.35 of 2021 had earlier filed Public Interest Litigation No. 5 of 2018 before this Court. The said Public Interest Litigation and another Writ Petition No.9199 of 2018 was disposed of by issuing directions to Collector, Dist. Ahmednagar to decide the representation of petitioners as expeditiously as possible and preferably within sixteen weeks from the date of order after extending opportunity of hearing to the parties. The Collector, Ahmednagar partly allowed the application filed by petitioners under order dated 14.06.2019 and directed the Sub Divisional Officer, Shirdi to take steps as per Government Resolution dated 16.02.2018 and submit detail report of enquiry. The Tahsildar, Kopargaon under communication dated 14.01.2020 communicated to the Sub Divisional Officer, Shirdi that as per the measurement and the records with Grampanchayat and Revenue Department, 90 encroachments in Gut No.447 and 448 at village Dhondewadi are found which are not eligible for regularization as per Government policy and Act. On or about 23.01.2020, the report is submitted by the Block Development Officer of Panchayat Samiti, Kopargaon about encroachments in Gut No.447 and 448 at village Dhondewadi. According to the petitioners in Public Interest Litigation, though, the report is submitted, no steps are undertaken for removal of the encroachments from the gairan land and the public way.

4. After filing of the Public Interest Litigation No.35 of 2021, respondent no.4 issued communication on 08.01.2021 to Tahsildar and Block Development Officer to undertake demolition/removal of 51 structures from Gut No.447 and 45 structures from Gut No.448 of village Dhondewadi. The petitioners in all these writ petitions challenged the said communication.

5. According to Mr. Ambetkar, learned counsel for the petitioners in Public Interest Litigation, the encroachments of these respondents is writ large. 51 persons have encroached in land Gut No.447. The said encroachments deserves to be removed immediately and in Gut No.448, 45 persons have encroached illegally on the gairan land. The encroachments on the gairan land cannot be regularized. Reliance is placed on the Government Resolution dated 12.07.2011 and also the judgment of the Apex Court in Civil Appeal No.1132 of 2011 decided on 28.01.2011 in a case of Jagpal Singh and Ors. Vs. State of Punjab and Ors. The learned counsel further submits that, all persons who have encroached upon have their own houses in the same village, still have committed encroachments and are seeking regularization, the same are not permissible. The chart given by the Government is correct. 

6. Mr. Gaware, learned counsel for petitioners in writ petitions submits that, the impugned orders directing that, the structures of petitioners be removed is illegal and is passed without adhering to the principles of natural justice. The petitioners were not noticed while issuing the said communication. The stand of petitioners was not invited. The petitioners would have been in a position to substantiate that their encroachments are not illegal. Now some of them are shown to be given benefits of Gharkul Yojna. The same is given to the another person in the family. The land owned by the independent family members cannot be considered, as the land of petitioners. All these aspects could have been pointed out by petitioners, had authorities given opportunity to the petitioners to put forth their case. As the principles of natural justice are violated, the impugned orders are bad in law. The learned counsel further submits that, these persons having their structures on the lands are poor persons. They will not have roof over their head, if the structures are removed. According to the learned counsel, proper procedure is required to be followed before passing orders for removal and other alternate accommodation be provided before eviction. The learned counsel relies on the judgment of the Apex Court in a case of Olga Tellis and Ors. Vs. Bombay Municipal Corporation and Others reported in 1986 AIR (SC) 180. The learned counsel submits that, the decision making process has to be fair and transparent. Only because some persons filed Public Interest Litigation that should not be a ground to evict petitioners. The petitioners' possessions are required to be regularized as per the policy of the Government. Some persons if they have been granted benefits under the Gharkul Yojna, even, the same cannot be a yardstick to label that all the persons are not entitled for benefits of regularization. The learned counsel relies on the judgment of the Apex Court in a case of Onkar Lal Bajaj and Others Vs. Union of India and Another reported in (2003) 2 SCC 673. The learned counsel submits that, the civil rights are adversely affected. The principle of audi alteram partem has to be followed as a Rule. The learned counsel relies on the judgment of the Apex Court in a case of Mohinder Singh Gill Vs. Chief Election Commissioner, New Delhi reported in 1978 AIR (SC) 851.

7. The learned A.G.P. submits that, after the order was passed by this Court in Public Interest Litigation No.5 of 2018 alongwith companion matters and Writ Petition No.9199/2018 dated 01.11.2018, the office of Collector has given the detailed hearing to all the concerned parties who were parties before this Court. The respondent no.2- Collector also called the reports from the subordinate Government Officers in respect of the subject matters that is encroachments over the Government Land in Gut No.447 and 448 of village Dhondewadi. All petitioners herein were represented and filed their say through Mr. Nehe and after detailed enquiry and after giving the full consideration to all the reply and say filed by the concerned departments, the Collector passed an order on 14.06.2019. It is found that, some of the encroachments are required to be regularized as per the guidelines enumerated in the Government Resolution dated 16.02.2018 and some of the orders were passed to remove the encroachments of the persons not eligible for regularization. The same was done after verifying the reports from the Tahsildar and the Block Development Officer. The physical survey was done by the Talathi, Gramsevak of Gut No.447 and 448 and the report was prepared and submitted to the Committee. The Committee after going through the entire record found that, in Gut No.447, 7 persons are entitled for regularization and remaining encroachers have alternate lands and still they have encroached on Government land, so also in Gut No.448 not a single person is entitled for regularization, more importantly 20 encroachments are found for the business purpose and residential purpose and those were done after 2011. They are not fit for regularization. No action was taken because the pandemic situation was arisen. After the ease in the pandemic situation, the further process is done. The learned A.G.P. further submits that, in Gut No.447, 60 encroachments are held not entitled encroachments are not entitled for regularization. It is incorrect to say that, no notices were issued to petitioners. The Grampanchayat, Dhondewadi already issued notices for removal of encroachments after the order was passed by the Collector. The learned A.G.P. relies on the chart submitted by him.

8. We have considered the submissions canvased by the learned counsel for parties.

9. The petitioners in writ petitions do not dispute that, they are the encroachers over the gairan lands bearing Gut No.447 and 448 at village Dhondewadi. The prima donna contention is that, principle of natural justice has not been followed.

10. Some of the persons had also earlier filed writ petitions. Notices were given to them. It would appear that, say was also filed by some of the petitioners. The say appears to have been filed in the representative capacity. The committee was constituted at the level of Sub Divisional Officer. The detailed enquiry was made about the encroachers and whether they are entitled for regularization. The order is passed for removal of persons who have encroached on the gairan land and not entitled for regularization. It also appears that, say was filed by one person in representative capacity. The fact remains that, these are the persons who have been given benefits under the various public schemes, such as, Gharkul Yojna. In some cases, the husband has been granted land and the benefit under the Gharkul Yojna and encroachment on the gairan land is made in the name of wife. In some cases, the benefit of the Gharkul Yojna is given in the name of son and the mother is encroacher on the gairan land. In some cases, the person himself is granted benefit under the Gharkul Yojna and has house constructed, still has encroached upon the gairan land. The detailed chart is filed by the State Government clarifying as to how these encroachments on the gairan land are not entitled for regularization. The said chart is in regional language. It is reproduced as under: 

---

11. We can understand the plight of persons who do not have roof over their head and order of removal of encroachments is passed against him, but here are the persons who have been given the benefit of public schemes of Government, such as Gharkul Yojna and have again caused encroachments on the gairan land. Such persons cannot be protected. The detailed survey seems to have been made by the Committee and thereafter, the conclusion has been drawn. The documents are also relied by the authorities. The chart given provides for the details as to how these persons are not entitled for regularization. These are the persons who either are given benefits under the scheme and still have encroached on the gairan land and/or some already have their houses and still structures are erected by committing encroachments. Some of the persons have started commercial activity. The details have been given in the affidavit-in-reply. Certainly for commercial purpose, the same would not be permissible. Even after the order is passed by the Collector holding that as per Government Resolution dated 16.02.2018, the persons are not entitled for regularization two years have lapsed. The measurement was already carried out by TILR. The boundaries are demarcated. Initially, the Committee of Sub Divisional Officer, Tahsildar and Block Development Officer has called a report from concerned Block Development Officer of Panchayat Samiti. The Committee with the help of Talathi and Gramsevak carried out physical survey of all the encroachments in Gut No.447 and 448. They identified the exact encroachments and the reasons of the encroachments and they submitted the report. There were very few encroachments in Gut No.447 who are entitled for regularization and their cases has been considered positively. Some of the encroachers have alternate lands, still have encroached on Government land. The 7/12 extracts supports the stand of the Government. In Gut No.448 out of 45 encroachments, 20 encroachments are found to be for business purpose and those were after 2011. If the encroachments are after 2011, they cannot be regularized even as per Government Resolution dated 16.02.2018. Earlier some of the encroachers had filed writ petitions. The writ petitions were disposed of directing the Collector to conduct enquiry and consider the stand and now some other persons are filing writ petitions.

12. The gairan land cannot be used for business purpose. The Government comes out with the laudable policy to regularize the encroachments of the needy persons and who may not have roof on their head or it is essential for the livelihood to qualify the encroachment land. In the present case, petitioners who have encroached upon the gairan land, possess and own the agriculture lands. They possess structures in their own agriculture lands. Some of them or their family members have been granted benefits of Gharukul Yojna i.e. the Government Scheme for construction of house and still encroached on the gairan land and some of them have carried out commercial activities on the encroachments made on the gairan land. Such encroachments cannot be protected. The Court would not come to the aid of such persons. In case of Olga Tellis and Ors. Vs. Bombay Municipal Corporation and Others (Supra) the persons affected by the demolition notice / eviction notice were the pavement dwellers and were to be deprived of their livelihood and life. In the present case, situation is otherwise. These persons have alternate accommodation. They owned the agriculture lands. They are given benefits of Gharkul Yojna that is the Government Scheme, inspite of that, are maintaining encroachments on the gairan lands. They cannot be granted protection by invoking our writ jurisdiction under Article 226 of the Constitution of India. The gairan lands are not meant for indiscriminate encroachments. The Apex Court in a case of Jagpal Singh and Ors. Vs. State of Punjab and Ors. (supra) had observed that, encroachments on the gairan lands are to be removed and should not be permitted. Pursuant to the judgment of the Apex Court in a case of Jagpal Singh and Ors. Vs. State of Punjab and Ors. the Government Resolution dated 12.07.2011 has been issued.

13. Considering the above, we cannot come to the aid of petitioners in these writ petitions. The Government Authorities may proceed further pursuant to their communications for removal of illegal encroachments and encroachments of those persons whose encroachments cannot be regularized.

14. The petitioners in writ petitions may remove their encroachments from Gut No.447 and 448 at village Dhondewadi within a period of one month. In case, these petitioners do not remove the encroachments within a period of one month, then respondent-authorities may proceed further for removal of encroachments.

15. With the aforesaid observations and directions, the Public Interest Litigation and Writ Petitions stand disposed of. No costs.

16. In view of disposal of Public Interest Litigation No. 35 of 2021, present Civil Application No.7732 of 2021 stands disposed of. 

                                (R. N. LADDHA)                             (S. V. GANGAPURWALA) 

                                        JUDGE                                                      JUDGE

Delhi District Court in Hari Singh vs. Om Prakash [21.10.2021]

In the Court of Ms. Rishika Srivastava, Civil Judge (West)- III, Tis Hazari, Delhi

CS No. 60844416

CNR No. DLWT030004422013

 Hari Singh Vs. Om Prakash 

1. Hari Singh s/o Shri Bhagwan Dass R/o V.P.O, Mundka, New Delhi

2. Surat Singh, S/o late Shri Udmi Ram R/o V.P.O Mundka, New Delhi 

3. Ram Kumar s/o late Sh. Harsaroop R/o V.P.O, Mundka, New Delhi 

4. Zile Singh s/o late Shri Bhim Singh R/o V.P.O, Mundka, New Delhi 

5. Umed Singh s/o Sh. Gokal Chand R/o V.P.O, Mundka, New Delhi 

6. Nafe Singh s/o Sh. Mir Singh R/o V.P.O, Mundka, New Delhi 

7. Satbir Singh s/o Shri Fateh Singh R/o V.P.O, Mundka, New Delhi 

8. Jai Prakash s/o Sh. Ram Mehar R/o V.P.O, Mundka, New Delhi 

9. Parveen Kumar s/o Sh. Om Prakash R/o V.P.O, Mundka, New Delhi 

10. Anil Kumar s/o Sh. Dhir Singh R/o V.P.O, Mundka, New Delhi 

11. Balraj s/o Shri Ganeshi R/o V.P.O, Mundka, New Delhi 

12.Rajinder Kumar s/o Mohan Lal R/o V.P.O, Mundka, New Delhi 

13.Satpal s/o Shri Mir Singh R/o V.P.O, Mundka, New Delhi 

14.Rajpal s/o Shri Neki Ram R/o V.P.O, Mundka, New Delhi 

15.Fateh Singh s/o Shri Baldeva R/o V.P.O, Mundka, New Delhi 

16.Kartar Singh s/o Shri Ram Phal R/o V.P.O, Mundka, New Delhi 

17.Braham Parkash R/o V.P.O, Mundka, New Delhi 

18.Suresh Kumar s/o Shri. Hardatt Singh R/o V.P.O, Mundka, New Delhi 

...... Plaintiffs 

Vs. 

1. Om Parkash S/o late Sh. Hukmi R/o Village Hiran Kudna New Delhi 

2. Ram Kumar Singh s/o Late Sh. Pratap Singh R/o House No. 472, V.P.O Mundka New Delhi 

3. Sh. Rambir Singh S/o Sh. Pratap Singh R/o V.P.O Mundka New Delhi 

4. The Gaon Sabha Mundka Through its B.D.O (West) B.D.O Compex, Rohtak Road Nangloi, New Delhi-110041 

.... Defendants 

Date of Institution : 07.10.2013 

Date on which reserved : 05.10.2021 

Date of Judgment: 21.10.2021 

SUIT FOR PERMANENT & MANDATORY INJUNCTION 

JUDGMENT

1. The present suit for permanent and mandatory injunction has been filed by the abovementioned 18 plaintiffs, all of whom claim to be residents of Mundka village, against the defendants.

PLAINTIFFS' VERSION:

2. The case of the plaintiff in brief is that:

a. The plaintiffs are residents of village Mundka, New Delhi and are in joint use, occupation and possession of plot bearing no. 776/1/2/2 area measuring 2 biswas, situated in the area of extended lal dora, Village Mundka, New Delhi (hereinafter referred as 'suit property');

b. The suit property comprises of a well which is used by the plaintiffs along with the other villagers; c. The members of the Julaha samaj/scheduled caste community specifically used this well for religious purposes;

d. Defendant No. 1 has conspired with defendant No. 4 to usurp the suit property and a collusive suit (bearing No. 362/09) has been filed by the defendant no. 1 through defendant No. 2 against the block development officer; e. The abovementioned collusive suit is with respect to plot bearing No. 776/1/2/1, Village Mundka, New Delhi but the present suit property has also been included in the side map filed therein with a view to unlawfully grab the well which is reserved for public purposes; f. Defendant no. 3 has illegally installed an electricity connection in his own name in the suit property; g. The ownership of the suit property vests with the gram sabha and not with defendant No. 1,2, and 3; h. The well is situated on the suit property and the same is evident from the revenue records and demarcation report prepared by the revenue department;

i. The grievance of the plaintiff is that the defendant no. 4, SDM, BDO and SHO concerned are not taking any action against defendant No.1,2, and 3 and defendant No. 4 is conspiring with the other defendants so as to enabled them to grab the land;

j. Moreover, on 15.09.2013, defendant 1, 2 and 3 along with certain unidentified mussel man reached the suit property and tied to encroach upon it.

3. Therefore, the plaintiff was constrained to file the present suit seeking permanent and mandatory injunction.

VERSION OF DEFENDANT NO. 2:

4. The case of the defendant no. 2 as stated in his written statement is as follows:

a. The plaintiffs are neither the owners nor in possession and occupation of the suit property and thus have no locus standi to file the suit;

b. As per the plaintiffs' own case, defendant no. 4 Gaon Sabha is the owner of the suit property;

c. Defendant No. 2, and 3 are also residents of the same village and have the same right as the plaintiffs to use the suit property;

d. The well situated on the suit property has not been in use since the last 30 years and the water in village Mundka is supplied by Delhi Jal Board;

e. There is no collusion among any of the defendants and defendant no. 1 is the co-owner of property in khasra no. 776/1/2/1, Village Mundka, New Delhi and has been in possession of the same since 35 years;

f. The defendants have not wrongfully and deliberately included the suit property in the site map filed in the suit bearing No. 362/09;

g. The plaintiffs has not filed any document showing that the suit property was used by members of Julaha Samaj or any weaker section /schedule caste community; h. Defendant no. 1 never tried to encroach upon the suit property.

Therefore, it has been prayed that the suit of the plaintiff be dismissed with cost.

VERSION OF DEFENDANT NO. 4:

5. The case of defendant No. 4 in brief is:-

a. The plaintiffs have no locus standi as they are neither the owners nor in possession of the suit property; b. As per the revenue records (aks sizra, demarcation report and khatoni) of the suit property, the land belongs to gaon sabha and the gaon sabha has not acted as collusion with the defendants;

c. The plaintiffs have not filed any document to show that the well on the suit property was used by the Julaha Samaj/Schedule Caste community;

Therefore, it has been prayed that the suit of the plaintiff be dismissed with cost.

REPLICATION:

6. In the replication to the written statements of defendant No. 2 and 4, the plaintiffs denied the averments therein and reaffirmed the case as stated in the plaint. The plaintiffs further asserted that they have a right to file the present suit as they are the members of the Gaon Sabha.

DEFENDANT NO. 1 AND 3 PROCEEDED EX-PARTE:

7. No written statement was filed by defendant No. 1 and 3 and vide order dated 26.02.2014, they were proceeded ex-parte.

ISSUES:

8. From the pleadings, the following issues are framed:

1. Whether the plaintiff has no locus standi to file the present suit? OPD

2. Whether the suit is not maintainable in the present form and nature? OPD

3. Whether the suit is bad for non-joinder and mis joinder of necessary parties? OPD

4. Whether the plaintiff is entitled for the decree of permanent injunction as prayed for against defendant No. 1 to 4? OPP

5. Whether the plaintiff is entitled for decree of mandatory injunction as prayed for? OPP

6. Relief.

EVIDENCE

9. Plaintiff No. 3 was examined as PW-1 who placed reliance upon the following documents:- Ex. PW-1/1 (OSR) Voter I Card of PW-1 Ex. PW-1/1A Certified copy of order dated 20.12.2013 in CS No. 362/09 Ex.PW-1/2 Site map Ex.PW-1/3 Demarcation report 

10. Certain other documents i.e. Mark A to Mark P were also relied upon by PW-1. However, since they were only photocopies, defendant No. 2 objected to their admissibility on the ground of mode of proof.

11. Thereafter, PW-2 Sh. Dharmanand, Patwari from office of SDM, Punjabi Bagh, New Delhi was examined. He relied upon the following documents:

Ex.PW-2/1 (OSR) Khatoni of Khasra No. 776/1/2/2 for the year 2005-2006 Ex. PW-2/2 (OSR) Aks sizra for the year 1976-1977 for village Mundka Ex.PW-2/3 Certified copy of demarcation report dated 13.12.2016 Ex. PW-2/4 Certified copy of the report stating that demarcation report dated 19.11.2008 is in the record of suit No. 362/09

12. Both the witnesses were duly cross examined and discharged. Thereafter PE was closed and the matter was fixed for DE.

13. In DE Sh. Rajesh Kumar, Patwari from SDM Office, Punjabi Bagh, Nangloi, Delhi was examined as DW-1. He placed reliance upon only one document i.e. Khatoni of Khasra No. 776/1/2/2 for the year 2005-2006 (Ex DW-1/1). Defendant No. 2 was examined in chief as DW-2 who placed reliance upon his evidence affidavit Ex. DW-2/A. Thereafter, DW-3 Sh. Chhedi Lal Maurya, JA, Record Room, Tis Hazari, Delhi was examined as DW-3 and he has placed reliance upon certified copy of appeal and judgment order dated 31.10.2016 in RCA No. 11/2014 (Ex. DW-3/1 (colly)). Lastly, Sh. Narender Kumar, Record Keeper from Revenue Department, Tis Hazari, Delhi was summoned and examined as DW-4. He placed reliance upon only one document i.e. Khasra girdawari of khasra no. 776/1/2 pertaining to the year 1988-1989 (Ex. DW-4/1). All the witnesses were duly cross examined and discharged and thereafter, DE was closed.

ISSUE WISE FINDINGS Issues nos. 1 and 2:

Whether the plaintiff has no locus standi to file the present suit? OPD Whether the suit is not maintainable in the present form and nature? OPD

14. Both these issues are being taken up together as they involve common appreciation of evidence and law and because similar arguments have been advanced by both the parties with respect to both of them.

15. On behalf of the defendant no. 2, it has been argued that the plaintiffs have no personal right over the suit property as they neither own it nor are in possession of the same. It has been further argued that the suit property vests with the defendant no. 4 (Gaon Sabha) and the plaintiffs themselves have only claimed to have a right to use the well situated therein, in common with the other villagers, and hence the suit is not maintainable as the plaintiffs lack the locus standi to file it. Reliance has been placed upon Section 91 CPC in this regard and it has been submitted that neither did the plaintiffs obtain the leave of the court to file the present suit nor have they made any averment regarding any special damage which has been caused to them because of the defendant's allegedly unlawful act. Therefore, the suit is liable to be dismissed on this ground alone. The defendant no. 2 has additionally also argued that the plaintiffs have failed to comply with the requirements in Order I Rule 8 CPC and hence the suit is liable to be dismissed on this ground as well.

16. Ld. counsel for defendant no. 4 has advanced arguments on similar lines as the defendant no. 2 and has submitted that the plaintiffs have no right or interest over the suit property and have not suffered any special damage. It has been further argued that the well situated on the suit property is for common use of all the villagers and was not specifically used by the Julaha samajh or any other community, as alleged by the plaintiffs.

17. On the other hand, ld. counsel for the plaintiffs has argued that the plaintiffs are residents of the village Mundka and therefore by virtue of Section 151 of Delhi Land Reforms Act, 1954, they are members of the Goan Sabha and have the right to use the lands vested in it. It has been further submitted that the suit has not been filed in a representative capacity and therefore, Order 1 Rule 8 CPC is not applicable. With respect to the locus standi of the plaintiffs as well the merits of the case, reliance has been placed upon Jagpal Singh and ors v. State of Punjab [(2011) 11 SCC 396].

18. At the outset, it must be stated that the suit has not been filed by the plaintiffs in representative capacity and hence the question of non-compliance with Order I Rule 8 CPC does not arise. Merely because multiple persons have joined hands as plaintiffs before this court, does not imply that the suit has been filed on behalf of all the residents of the village.

19. It is settled law that nuisance is of two types: public and private. With respect to public nuisance or other wrongful acts affecting the public, a suit can be filed only after compliance with Section 91 CPC. However, a suit which is based upon private nuisance or where there is infringement of any special personal right, or threat of such infringement, can be instituted by the person aggrieved directly without having to resort to Section 91 CPC.

20. Before proceeding forward, it is necessary to consider the law contained in Section 91 CPC which reads as under:

91. Public nuisances: (1) in the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, may be instituted,"

(a) by the Advocate General, or

(b) with the leave of the Court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act.

Nothing in this Section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions.

21. Thus, as apparent from the sub-clause (2), the right of the plaintiff to file a suit has not been taken away and it is not otherwise affected by sub-clause (1) and can be exercised independently of it. In Suresh Chander Goyal v. Davinder Singh [2016 SCCOnline Del 3899] it was held that:

"A plain reading of section 91 makes it very clear that there are two modes of escape from the special restriction of section 91 namely proof of special damage and proof of invasion of the special rights of a limited class which will give an independent right of action. If the suit is treated to be in the individual capacity, what would be required of the plaintiffs would be the proof of the nuisance causing damages or violation of any personal or private rights."

22. The Court will now proceed to analyze whether the present suit deals with infringement of private rights or with public nuisance. In the present suit, the plaintiffs have claimed to have a common right to use the well situated on the suit property by virtue of being members of the Goan Sabha and by virtue of being residents of Mundka village. They have not claimed to have any personal right over the suit property or over the well. All that has been averred in the plaint is that the members of the Julaha samaj, a scheduled caste community, used the well for religious purposes. However, the plaint is conspicuously silent upon what exactly this religious purpose is. There are no details about what religious rites or ceremonies the well is/was used for by members of the Julaha community and on what occasion was it so used. PW-1 has also failed to provide these necessary details in his examination in chief by way of affidavit Ex PW-1/A. Further, a meticulous perusal of the entire documentary evidence led by the plaintiffs also reveals that there is absolutely no material on record which shows that the plaintiff has any special right over the suit property or has suffered any special damage on account of its alleged infringement. Thus, no infringement of private right or occurrence of any constituting private nuisance is made out. All that has emerged from the pleadings as well as the evidence of the plaintiffs are allegations of public nuisance and violation of a right available to all the residents of the village Mundka.

23. In these circumstances, it was imperative for the plaintiffs to comply with Section 91(1)(b) CPC and to seek the leave of this Court for instituting the suit. No such leave was taken at the initial stage of institution of the suit or at any later stage. An application under Section 91 and Order I Rule 8 CPC was filed by the defendant no. 2 seeking dismissal of the suit but the same was not pressed and was therefore, kept pending, as noted in order dated 05.04.2016.

However, merely because the defendant no. 2 did not press his application at an earlier stage, does not cure the defect in the suit attributable to the plaintiffs.

24. At this stage, it is also essential to analyze the law laid down in Jagpal Singh (supra). Since the ld. counsel for the plaintiff has strongly relied upon this judgment, the Court deems fit to deal with it in some detail. The factual matrix in Jagpal Singh (supra) was that the Gram Panchayat had filed an application under Section 7, Punjab Village Common Lands (Regulation) Act, 1961 for eviction of certain unauthorized occupants and trespassers from common village land consisting of a pond. The concerned Collector, instead of ordering the eviction, ordered that the Gram Panchayat should recover the cost of land from such trespassers. Against this order, an appeal was filed by certain persons before the Commissioner concerned, who allowed the appeal and held that since the pond was meant for public purpose, no person could be allowed to encroach upon it and that it appeared that the Gram Panchayat was in collusion with the trespassers. This order of the ld. Commissioner was challenged before the Hon'ble High Court of Punjab and Haryana by way of an appeal which was disallowed. The matter thereafter reached the Hon'ble Supreme Court wherein the Supreme Court affirmed the decision of the Hon'ble High Court. While deciding upon the appeal, the Hon'ble Apex Court stated that lands meant for common use of villagers cannot be encroached by anyone and such illegal acts cannot be regularized.

25. Having thoroughly considered the facts of the case in Jagpal Singh (supra) and the law laid down therein, this Court finds that it does not buttress the case of the plaintiffs for reason that it does not deal with Section 91 CPC at all. Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 allows any inhabitant of a village to file an application for ejectment of any unauthorized occupant from any land in the shamalat deh of the village which vests or is deemed to vest with the Panchayat. There is no such corresponding provision in the Delhi Land Reforms Act 1954, nor has the plaintiff pointed out any other law which authorizes him to file a civil suit without obtaining the leave under Section 91(1) CPC. Hence, Jagpal Singh (supra) does not rescue the plaintiff from the rigours of Section 91 CPC.

26. Thus, the suit is liable to be dismissed for non-compliance with mandatory provision of Section 91(1) CPC and issues no. 1 and 2 are decided in favour of the defendants.

Issue no. 3:

Whether the suit is bad for non-joinder and mis joinder of necessary parties? OPD

27. With respect to this issue, no evidence has been led by either of the parties. The sole argument advanced by the defendant no. 2 with respect to this issue is that suit property consists of a well, which is a water body, and therefore the Delhi Jal Board is a necessary party. No further argument was advanced either orally or in writing on this aspect.

28. A necessary party is a person who ought to have been joined as a party and in whose absence no effective decree can be passed. In the present suit, the entire suit property vests with the defendant no. 4 Gaon Sabha and there is nothing on record to show that the well situated therein vests with the Delhi Jal Board. Further, the grievance of the plaintiffs is against the four defendants only and not against the Delhi Jal Board, which is why no relief has been sought against the latter. Hence, on the basis of the material before this court, it cannot be said that the Delhi Jal Board is a necessary party and that the suit is bad for its non-joinder. Issue no. 3 is accordingly decided against the defendants.

Issue nos. 4 and 5:

Whether the plaintiff is entitled for the decree of permanent injunction as prayed for against defendant No. 1 to 4?OPP Whether the plaintiff is entitled for decree of mandatory injunction as prayed for?OPP

29. Since the plaintiffs have not instituted the suit properly after obtaining permission under Section 91(1) CPC, the reliefs sought by the plaintiffs cannot be awarded to them. In light of the findings on issues no. 1 and 2, issues no. 4 and 5 are liable to be decided in the negative.

30. Additionally, the first part of the decree of permanent injunction sought by the plaintiffs against defendant No. 1,2, and 3 is for restraining them from "encroaching upon the land of the well towards southern side by illegally erecting way thereby putting hindrance in the common use of the CS No. well and also from the land of well specifically shown red in the site plan attached". However, the plaint makes no mention of any alleged activity taking specifically from the southern side and only comprises of general allegations regarding actual as well as attempted encroachment. In these circumstances, the specific injunction as prayed for by the plaintiffs cannot be awarded on account of absence of relevant material information.

31. The decree of mandatory injunction sought by the plaintiffs against the defendant No. 4 is partly for directing the latter "to protect the common land of the well and to remove the door and the wall in the eastern side of the land of the well, which is installed/raised illegally, unauthorized with arbitrary manner by the defendants No. 1,2, and 3". Once again, the plaint is silent on the construction of any wall specifically on the eastern side, because of which the decree sought cannot be awarded.

32. Lastly, in the absence of any private interest, the injunctions as sought by the plaintiff cannot be awarded by virtue of Section 41(j) of the Specific Relief Act, 1963 which states that an injunction cannot be granted when the plaintiff has no personal interest in the matter.

33. Issues nos. 4 and 5 are accordingly decided against the plaintiffs.

Relief

34. From the above analysis and determination of the issues, this Court holds that the plaintiff has failed establish their case on the basis of preponderance of probabilities. Accordingly, the suit of the plaintiff stands dismissed. No orders as to cost. Let the decree sheet be prepared. File be consigned to record room.

Announced in Open Court today i.e. 21.10.2021