Protection of Village Commons and Water Bodies: The Supreme Court in Jitendra Singh v. Ministry of Environment & Ors.

                         REPORTABLE IN THE SUPREME COURT OF INDIA 

                                           CIVIL APPELLATE JURISDICTION 

                                               CIVIL APPEAL NO. 5109 OF 2019 

Jitendra Singh..... Appellants(s) VERSUS Ministry of Environment & Ors.....Respondents(s)

JUDGMENT

SURYA KANT, J.

1. The instant statutory appeal has been preferred under Section 22 of the National Green Tribunal Act, 2010 (hereinafter “NGT Act”) against the order dated 06.03.2019 of the Principal Bench of the National Green Tribunal (“NGT”), whereby appellant’s grievance against allotment of local ponds to private industrialists has been dismissed summarily without any adjudication of the lis or merits, but merely on the basis of an affidavit filed by Respondent No. 5 (Greater Noida Industrial Development Authority – hereinafter “GNIDA”) claiming that it was developing bigger alternative waterbodies.

FACTUAL BACKGROUND

2. The appellant is a permanent resident of village Saini, tehsil Dadri, district Gautam Budh Nagar, which falls in the National Capital Region. He claims to be a socially-active lawyer dedicated to bettering the lives of his co-villagers and alleges that the Original Application before the NGT was triggered when around 18.01.2017 the agents of a private entity (Respondent No. 6 – M/s Sharp Enterprises Pvt. Ltd. – hereinafter “Sharp”) using excavators and other heavy machinery attempted to forcibly take over possession of a ‘common pond’, which had been in use by local villagers for a century. This was objected to by the villagers, and the appellant subsequently made a complaint on 25.01.2017 to various authorities including the District Collector. Pointing out revenue records which elucidate the commons status of the ponds, he sought directions to restrain Sharp and its agents. However, there was no action on his representation for more than 10 days, leading to another attempt by Sharp at dispossession, compelling the appellant to seek police help. A few days later, he submitted another representation to the Collector, but to no avail. Aggrieved, he was left with no recourse but to approach the NGT by way of an Original Application under Section 14 (read with Sections 15 and 18) of the NGT Act for adjudication of these environmental issues.

3. Before the Tribunal, appellant contended that large tracts of his village (but not the impugned waterbodies) had been acquired under the Land Acquisition Act, 1894 ostensibly for industrial development by GNIDA. Subsequently, these acquired lands (including some local ponds) had been leased to private industrialists, including Sharp in 2012. Using revenue records obtained under the UP Consolidation of Holdings Act, appellant showed that Khasra Nos. 552 (1140 sq. meters) and 490 (8470 sq. meters) were ‘pokhar’ (pond) and Khasra Nos. 522 (1620 sq. meters) and 676 (9804 sq. metres) were ‘rajwaha’ (canal). Highlighting that the water bodies were vested in the Gram Sabhas per Section 117 of the UP Zamindari Abolition and Land Reforms Act, 1950, he contended that such land had neither been acquired, nor resumed and hence there was no power with GNIDA to transfer the same to Sharp. He further claimed to have discovered other similar illegal allotments of water bodies by GNIDA to other third-parties.

4. The appellant urged that neither the mandatory environmental clearances under the Environmental (Protection) Act, 1984 had been obtained by the industrialists nor the statutory authorities applied their mind that the project would negatively impact the environment and human health. Laying support on the Ramsar Convention and Rule 4 of the Wetland (Conservation and Management) Rules, 2010 which prohibited reclamation of wetlands, setting up or expansion of industries, permanent construction or any other activity with potentially adverse effects on ecosystem, he sought cancellation of such illegal allotments and protection of waterbodies.

5. During pendency of the proceedings, GNIDA’s representatives started filling up certain ponds and started developing an alternate area (1.25 times bigger) as a new waterbody to save the allotment made in favour of Sharp (as admitted in an additional affidavit filed before the NGT on 15.01.2019 by GNIDA).

6. Over the course of proceedings, the appellant was permitted to amend his prayers in the Original Application to enable challenge to all illegalities concerning village commons. No rejoinder or additional affidavit was filed by any respondent against the amended Original Application.

7. The NGT vide its brief impugned order dated 06.03.2019 took note of this representation of constructing alternate pond and abruptly concluded that appellant’s substantial grievance had been redressed. It accordingly dismissed his application, without venturing into the merits or the lis of the dispute.

CONTENTIONS OF PARTIES

8. This summary dismissal by the NGT has been challenged before us. Appellant raises grievance against the manner in which the NGT, without even looking at the sweep of his prayers, disposed of the matter before it, merely on the strength of a proposed affidavit (which was actually filed only on 12.03.2019, post adjudication of the application by the NGT and without any advance copy to the appellant). He further protests the haste with which his application was disposed of and how the reluctance by the NGT to conduct even a proper enquiry has resulted in conferment of illegal benefits to third parties, at the cost to the environment and local residents.

9. The appellant contends that the disputed pond is situated near the Aravali hills which are in an arid zone with a low-water table. He demonstrated how the existing sparse flora and fauna in the region was hence unlikely to survive elsewhere. Highlighting the unchecked urbanisation and construction of concrete jungles in the ecologically sensitive area, the appellant alleged that respondent-authorities were in active connivance with industrialists and real estate companies, and were negligently discharging their duties. This, he contended, violated public trust and consequently the right to a wholesome environment guaranteed under Article 21 of the Constitution. Interpreting Article 48A and Article 51A(g) to place a duty on the State to protect the environment, including lakes and waterbodies, the appellant has sought intervention of this Court to save and restore the local ponds.

10. Per contra, learned Counsel for GNIDA (Respondent No. 5) placed reliance on a Government Order dated 03.06.2016, which he claimed permitted destruction of existing ponds and allotment of filled-up land to third-parties in certain extraordinary circumstances, with the stipulation that 25% larger alternate waterbodies be developed elsewhere. Further, he questioned recording of Khasra Nos. 552 and 490 as ‘pokhar’ in revenue record, contending that it was merely ‘slightly low-lying land’ over which some water would get accumulated during rainy season. There was statedly no water on the pond-land since the past year, showing that it was merely ordinary in nature. Even if ‘pokhar’, Khasra No. 552 was only 1140 sq. meters in size, which constituted a minuscule portion (only 1.4%) of the total allotted plot of 80,900 sq. meters. It was also explained that no other ‘pokhar’ had been included and Khasra No. 490 had not been allotted to Sharp. GNIDA also put forth a contrary allegation that the appellant was, in fact, aggrieved by non-disbursement of compensation and had set up the entire dispute as a ruse to stall development of the area so that he could instead use it for his private purpose of cattle grazing.

11. Sharp (Respondent No. 6) has averred that the disputed land was no longer vested in the Gram Sabha as the UP Zamindari Abolition and Land Reforms Act, 1950 had been repealed by the UP Revenue Code, 2006. This new Code specified that title of all lands including lakes, ponds, tanks, streams and nallas vest in the State Government. Through Section 59 of the Code, the land was merely entrusted to the Gram Panchayat, and the State retained power to alter such entrustment at any time. It claimed to have paid Rs. 25 crores as sale consideration for leasehold rights over acquired areas and is allegedly suffering as a result of litigation-induced delays.

ANALYSIS & FINDINGS

12. At the outset, we must note, that the respondents have been unable to demonstrate how the 2016 Government Order can be made applicable retrospectively, the possession having been given to Sharp in 2012. Notwithstanding this, no case of the present instance being an extraordinary circumstance (hence permitting recourse to the exceptional provisions of the Government Order) has been made before us either. Further, argument that Khasra No. 552 is a ‘slightly-sloped seasonal rainfall catchment area’ and not a ‘pond’, is creative but without merit. Photographs have been placed on record by the appellant showing that there is substantial water in the pond, which has not been controverted. Further, revenue records maintained by the Revenue Department themselves show that the land was ‘pokhar’. It is hence not open for the authorities to contradict and plead against the record without any scientific or empirical support, for such categorisation had been made by them in the past. Further, it was conceded by respondent-authorities during arguments that Khasra No. 490 was also recorded as ‘pokhar’ in revenue records and that it too had been integrated in the industrial development project.

13. Additionally, it is clear that repeal of the UP Zamindari Abolition and Land Reforms Act, 1950 and vesting of such ponds and local areas in the State by Section 57 of the UP Revenue Code, 2006 would not by itself either change the nature of land contrary to revenue record nor will defeat the long-established rights of the local people on commons. Such a proposition had unequivocally been laid down in Chigurupati Venkata Subbayya v. Palaguda Anjayya, where this Court negatived a contention that communal rights in the suit land stood abolished per Section 3 of the Estates Abolition Act, 1948 for it provided that estates, including communal lands, would stand transferred to the Government free from any encumbrance. Further, it was held that even explicit destruction of all rights and interests created by the principal or landholders, would not apply to community rights as such rights originated elsewhere.

14. Given that Section 22 of the NGT Act, 2010 specifies that the nature of the appeal shall be akin to a second appeal as specified under Section 100 of the Code of Civil Procedure, 1908, we would restrict our deliberation to a singular substantive question of law. That is, whether it is permissible for the State to alienate common water bodies for industrial activities, under the guise of providing alternatives?

15. In Hinch Lal Tiwari v. Kamala Devi, this Court settled that ‘ponds’ were a public utility meant for common use and held that they could not be allotted or commercialised. It had refused to give any weight to similar arguments of the pond having become levelled, with merely some portion getting covered during rainy season by water. Importantly, it emphasised that:

“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.”

16. This Court reiterated in Jagpal Singh v. State of Punjab and noted that since time immemorial, certain common lands had vested in village communities for collective benefit. Except in exceptional circumstances when used exclusively for the downtrodden, these lands were inalienable. It was observed that such protections, however, remained on paper, and since Independence powerful people and a corrupt system had appropriated these lands for personal aggrandisement. Pointing out the harms in allowing such misappropriation, the Court noted an urgent public interest in stopping such misdeeds. Further, various directions were issued for eviction of illegal occupants and restoration of the common land to villagers. It was explicitly specified that “long duration of such illegal occupation or huge expenditure in making constructions thereon” cannot be a “justification for condoning this illegal act or for regularising the illegal possession”.

17. It is uncontroverted, in the present case, that the Government Order dated 03.06.2016 was a consequence of the aforesaid judgment in Jagpal Singh. Curiously, however, Clause 5 of the Government Order carves an exception of “huge projects/works” (albeit in extraordinary circumstances) to Jagpal Singh’s strict principle of non-alienation of common waterbodies. It is clear that such ground of exception doesn’t fall under the limited class of grants 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”. Such industrial activities without any rational classification, unlike the narrow class exempted, do not serve a social public purpose or benefit the local people, and thus will be hit by the inalienability bar.

18. Even otherwise, the action of the respondent-authorities contravenes their Constitutional obligations. Article 48A of the Constitution casts a duty on the State to “endeavour to protect and improve the environment and to safeguard the forests and wild life of the country”, and Article 51A(g) expects every citizen to perform his fundamental duty to “protect and improve the natural environment”. A perusal of our Constitutional scheme and judicial development of environmental law further shows that all persons have a right to a healthy environment. It would be gainsaid that the State is nothing but a collective embodiment of citizens, and hence collective duties of citizens can constructively be imposed on the State. Such an interpretation of the Constitution has also been adopted in MC Mehta v. Union of India wherein this Court mandated the State to ensure mandatory environmental education to all school students in pursuance of the fundamental duties enshrined in Article 51A(g):

“24. Having regard to the grave consequences of the pollution of water and air and the need for protecting and improving the natural environment which is considered to be one of the fundamental duties under the Constitution (vide Clause (g) of Article 51A of the Constitution) we are of the view that it is the duty of the Central Government to direct all the educational institutions throughout India to teach at least for one hour in a week lessons relating to the protection and the improvement of the natural environment including forests, lakes, rivers and wildlife in the first ten classes. The Central Government shall get text books written for the said purpose and distribute them to the educational institutions free of cost. Children should be taught about the need for maintaining cleanliness commencing with the cleanliness of the house both inside and outside, and of the streets in which they live. Clean surroundings lead to healthy body and healthy mind. Training of teachers who teach this subject by the introduction of short term courses for such training shall also be considered. This should be done throughout India.”

19. There remains therefore no doubt that it is the responsibility of the respondents to ensure the protection and integrity of the environment, especially one which is a source for livelihood for rural population and life for local flora and fauna.

20. Protection of such village commons is essential to safeguard the fundamental right guaranteed by Article 21 of our Constitution. These common areas are the lifeline of village communities, and often sustain various chores and provide resources necessary for life. Waterbodies, specifically, are an important source of fishery and much needed potable water. Many areas of this country perennially face a water crisis and access to drinking water is woefully inadequate for most Indians. Allowing such invaluable community resources to be taken over by a few is hence grossly illegal.

21. The respondents’ scheme of allowing destruction of existing water bodies and providing for replacements, exhibits a mechanical application of environmental protection. Although it might be possible to superficially replicate a waterbody elsewhere, however, there is no guarantee that the adverse effect of destroying the earlier one would be offset. Destroying the lake at Khasra Nos. 552 and 490, for example, would kill the vegetation around it and would prevent seepage of groundwater which would affect the already low water-table in the area. The people living around the lake would be compelled to travel all the way to the alternative site, in this case allegedly almost 3 kms away. Many animals and marine organisms present in the earlier site would perish, and wouldn’t resuscitate by merely filling a hole with water elsewhere. Further, the soil quality and other factors at the alternate site might not be conducive to growth of the same flora, and the local environment would be altered permanently. The respondents’ reduction of the complex and cascading effects of extinguishing natural waterbodies into mere numbers and their attempt to justify the same through replacement by geographically larger artificial water bodies, fails to capture the spirit of the Constitutional scheme and is, therefore, impermissible.

22. Hence, it is clear that schemes which extinguish local waterbodies albeit with alternatives, as provided in the 2016 Government Order by the State of UP, are violative of Constitutional principles and are liable to be struck down.

23. For the reasons stated above, we allow the appeal and set aside the impugned order passed by the NGT. The allotment of all water bodies (both ponds and canals), including Khasra Nos. 552 and 490 to Respondent No. 6, or any other similar third party in village Saini, tehsil Dadari, district Gautam Budh Nagar is held to be illegal and the same is hereby quashed. Since this Court has on 15.07.2019 already directed the parties to maintain status quo, Respondent Nos. 1 to 5 shall restore, maintain and protect the subject-water bodies in village Saini. Respondents are further directed to remove all obstructions from the catchment area through which natural water accumulates in the village ponds, all within a period of three months.

………………………….. J.
(ARUN MISHRA)

………..…………………...J.
(SURYA KANT)

NEW DELHI
DATED : 25.11.2019

Jammu & Kashmir HC: Construction of high security prison is in public interest [01.11.2023]

IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH

AT JAMMU

(Through VC)

                 LPA No. 185/2023 CM No. 6125/2023
                         LPA No. 186/2023
                         LPA No. 187/2023

                                                 Date of Hearing: 20.10.2023
                                                 Date of Judgment: 01.11.2023

Inhabitants of Village Dambra Mahanpura Kathua         ...Petitioner(s)/appellant(s)

Through:    Mr. Karan Sharma, Advocate.

                                  Vs.
UT of J&K th GAD and Ors.                                  ...Respondent(s)

Through:    Ms. Monika Kohli, Sr. AAG.



                              CORAM:

               HON'BLE THE CHIEF JUSTICE
  HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE

                              ORDER

01.11.2023 

N. Kotiswar Singh, CJ.

1. The present appeals, LPA No. 185/2023, LPA No. 186/2023 and LPA No. 187/2023 have been preferred against the common judgment and order dated 11.08.2023 passed in WP(C) No. 671/2022, WPC No. 1668/2022, and WPC NO. 269/2023 by which the learned Single Judge has dismissed all the three petitions. Accordingly, these appeals are heard together and disposed of by this common judgment.

2. The three petitions were filed by the same petitioners, namely, the Inhabitants of Village Dambra, Tehsil Mahanpur, District Kathua, through their representatives, challenging the act of the State in transferring certain Shamlat Deh (Mehfooz Kacharai) land located in village Dambra, Tehsil Mahanpur, District Kathua to the Prisons Department for setting up of a High Security Prison in Dambra Village.

3. The first writ petition WP(C) No. 671/2022, out of which LPA No. 185/2023 has arisen, was filed by the Inhabitants of Village Dambra, Tehsil Mahanpur, District Kathua through their representatives challenging the Order No. 36 JK(Rev) of 2022, dated 02.03.2022 issued by the Commissioner/Secretary to Revenue Department by which Shamalat Deh (Mehfooz Kacharai) falling under Khasra No. 427 min (108 Kanals 01 Marlas) and Khasra No. 486 min (39 Kanals 19 Marlas) at Village Dambra, Tehsil Mahanpur, District Kathua in favour of the Prisons Department, Jammu and Kashmir for construction of a High Security Prison, and by the same order, State land measuring 160 Kanals 04 Marlas under Khasra No. 1873 (73 Kanal 02 Marlas) Khasra No. 2597-2325 (78 Kanals) and Khasra No. 2598-2325 (09 Kanals 02 Marlas) situated at Village Dambra, Tehsil Mahanpur, District Kathua was transferred to the village Dambra to be used as Shamlat Deh (Mehfooz Kacharai).

4. The said transfer order dated 02.03.2022 was preceded by identification of the land which was duly communicated by the concerned Assistant Commissioner, Kathua to the Government vide his letter under No. 502/4388/Jail/Dambra/Kth/2696 dated 29.12.2021 which was also challenged along with the aforesaid land transfer order dated 02.03.2022 in the said writ petition, WP(C) No. 671/2022.

5. The second writ petition, WPC No. 1668/2022 out of which LPA No. 186/2023 has arisen, was also filed by the same petitioners, the Inhabitants of Village Dambra Tehsil Mahanpur, through their representatives seeking quashing of the Government order No. Home- 258 of 2022, dated 27.07.2022 issued by Commissioner Secretary Revenue Department, Civil Secretariat Jammu/Srinagar, by virtue of which sanction was accorded by the Government to the project of construction of High Security Prison at village Dambra. Further, the Notice Inviting Tender issued by the Executive Engineer, J&K Police Housing Corporation under e-NIT No. 26 of PHC Jammu Div/2022-23 dated 27.07.2022 for construction of the prison was also challenged.

6. In the third writ petition i.e., WPC NO. 269/2023, out of which LPA No. 187/2023 has arisen was filed by the same petitioners, in which the petitioners have challenged another NIT issued by the Executive Engineer, J&K Police Housing Corporation under e-NIT No. 42 of PHC Jammu Div/2022-23 dated 12.11.2022, relating to the construction of the High Security Prison and for directing restoration due to damages caused in the village land because of the construction of the said High Security Prison.

7. Thus, from the above, it is evident that the three writ petitions were filed being aggrieved by the transfer for use of Shamlat Deh (Mehfooz Kacharai) land for the purpose of establishing of a High Security Prison and other connected and consequential actions i.e., notice inviting tender etc.

8. The principal grounds taken in these writ petitions in challenging the aforesaid actions are that the respondent authorities had illegally transferred the Shamlat Deh (Mehfooz Kacharai Land) to the Prisons Department of Jammu and Kashmir (J&K) in violation of a number of judgments of the Hon'ble Supreme Court relating to protection and preservation of environment and also various orders issued in this regard by the State authorities putting a bar on transfer of Shamlat Deh (Mehfooz Kacharai) land/community land for other purposes.

9. The said writ petitions came to be considered by the Ld. Single Judge on 18.08.2023 by which the said petitions were dismissed, which is challenged in this batch of letters patent appeals. On going through the impugned order dated 18.08.2023 passed by the Ld. Single Judge, it is seen that the writ petitions were dismissed by the Ld. Single Judge, as also contended before us by the ld. Counsel for the appellant petitioners, without touching on the merits of the case. These petitions were dismissed primarily because of the conduct of the petitioners, which the Ld. Single Judge found unacceptable. When the writ petitions were taken up for consideration, Ld. Govt. Counsel for the respondents, Ms. Monika Kohli, Sr. AAG brought to the notice of the Writ Court a legal notice dated 07.08.2022 issued by the petitioners, which was kept on record by the Writ Court. The said legal notice was addressed to the Chief Secretary, Government of UT of J&K, the Financial Commissioner/Additional Chief Secretary to Government of UT of J&K, and the Executive Engineer of J&K Police Housing Corporation, by which the counsel for the appellant/petitioners warned that if the ongoing construction works for the prison at the site was not stopped within two days, contempt proceedings would be initiated against them. When the Ld. Single Judge dealing with the said legal notice enquired from the counsel for the appellant petitioners, Shri Karam Sharma, as to which order of the Writ Court was violated on the basis of which the legal notice for initiating contempt proceedings was issued to the aforesaid officials, it was submitted by the counsel for the petitioner appellants that it was with reference to a decision of the Hon'ble Supreme Court rendered in Jagpal Singh &Ors. Vs. State of Punjab in Civil Appeal No. 1132/2011in which it was held that allotment of Gram Sabha land is illegal.

10. The Ld. Single Judge took the view that if the writ petitioners in these petitions were aggrieved by any alleged violation of the order passed by the Hon'ble Supreme Court in Jagpal Singh (supra), the petitioners would be free to file appropriate contempt petition for alleged violation of the judgment of the Hon'ble Supreme Court, but in the present case, since no interim order was passed by the Writ Court in any of the three writ petitions, the Ld. Single Judge deprecated the aforesaid act of the counsel for the writ petitioners which according to the Ld. Single Judge would amount to attempt to browbeat the State officials and, accordingly, Ld. Single Judge took the view that the petitions had been filed without bonafide motive and, accordingly, dismissed the writ petitions with liberty to petitioners to take recourse in the matter of contempt if the judgment of the Hon'ble Supreme Court was violated as claimed by the counsel for the petitioners appellants.

11. On perusal of the impugned order dated 11.08.2023, we have also noted that the Ld. Single Judge did not dwell on the merit of the case but dismissed the writ petitions because of the aforesaid questionable conduct of the petitioners in serving notice for initiating contempt proceedings against the State officials.

12. In view of above, we have allowed the learned counsel for the appellants, writ petitioners, Shri Karam Sharma, to address us also on the merit of the case, as the pleadings are otherwise complete, and the objections/affidavit in opposition filed by the respondents in all the three petitions are on record before us.

13. Accordingly, we have heard learned counsel for the parties on merit extensively.

14. Learned counsel for the appellants has challenged the aforesaid act of the official respondents in transferring the Shamlat Deh (Mehfooz Kacharai Land) to the Prisons Department principally on two grounds as discussed herein below.

15. Firstly, it has been submitted that Shamalat Deh (Mehfooz Kacharai Land) is the land which was being used by the villagers since time immemorial primarily for the purpose of grazing of cattle in the village and thus, has been kept free of constructions. It is also used for recreational activities as a playground for the villagers. It has been also contended that it's utility for maintaining ecological balance in the village surroundings also cannot be doubted as this land has also ponds and large tract of forests. Thus, if any permanent and large constructions are made on such land by destroying trees, grazing grounds, and filling up the ponds, it will disturb the environment and ecological balance in the village, which has been deprecated in a catena of decisions by the Hon'ble Supreme Court as in T.N. Godavarman Thirumulpad (87) v. Union of India, (2006) 1 SCC 1 in which it was observed that natural resources are the assets of the entire nation and it is the obligation of all concerned, including the Union Government and State Governments to conserve, and not waste these resources. Article 48-A of the Constitution requires that the State shall endeavour to protect and improve the environment and to safeguard the forest and wildlife of the country. Under Article 51-A, it is the duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures.

Intellectual Forum, Tirupathy vs State of AP, (2006) 3 SCC 549 was also relied upon wherein it was observed that temple tanks maintain environment of surrounding areas and these are communal property and the state authorities are their trustees to hold and manage such properties for the benefit of the community and the State authorities should not be allowed to commit any act or omission which will infringe upon the right of the community to enjoy the property.

In the case of Rameshbhai Virabhai Chaudhari Vs. State of Gujarat (Civil Appeal No. 5135 of 2021), which was also relied upon by the appellants, the Hon'ble Supreme Court held that it is trite to say that Kahcharai land can be used only for purposes for which it is permitted to be used and if there is a user contrary to the permissible user, whether by the State or by any third party, the same cannot go on.

The appellants also referred to M.I. Builders (P) Ltd. Vs. Radhey Sham Sahu (1996) 6 SCC 464, in which the Hon'ble Supreme Court ordered restoration of a park after demolition of a shopping complex constructed at the cost of over hundreds of crores of rupees.

In Jagpal Singh v. State of Punjab (2011) 11 SCC 396 heavily relied upon by the appellants, it has been held by the Hon'ble Supreme Court that since time immemorial there have been common lands inhering in the village communities in India, variously called Gram Sabha land, Gram Panchayat land (in many North Indian States), Shamlat Deh (Mehfooz Kacharai) (in Punjab, etc.), Mandaveli and Poramboke land (in South India), Kalam, Maidan, etc., depending on the nature of user. These public utility lands in the villages were for centuries used for the common benefit of the villagers of the village and also others like ponds were used for various purposes e.g. for their cattle to drink and bathe. These lands are also used for storing their harvested grain, as grazing ground for the cattle, threshing floor, maidan for playing by children, carnivals, circuses, ramlila, cart stands, water bodies, passages, cremation ground or graveyards, etc. These lands stood vested through local laws in the State, which handed over their management to Gram Sabhas/Gram Panchayats and they were generally treated as inalienable in order that their status as community land be preserved. The Hon'ble Supreme Court also noted that there can be no doubt that there are some exceptions to this rule which permitted the Gram Sabha/Gram Panchayat to lease out some of these land to landless labourers and members of the Scheduled Castes/Tribes, but this was only to be done in exceptional cases.

16. Secondly, it was contended on behalf of the appellants that the transfer of the Shamlat Deh (Mehfooz Kahcharai Land) to the Prisons Department is plainly in contravention of the Government Circular No. FC-LS/Misc- 3744/2010 dated 09.12.2010 which deals with the acquisition/transfer/ allotment of Kahcharai land in which it has been specifically mentioned that frequently cases have been put up for recommendation for acquisition/transfer/allotment of Kahcharai land instead of State land, which should be the first priority. Under the second paragraph of the said Circular dated 09.12.2018, it has been stated that Kahcharai land being under the collective ownership of the local community, reserved for grazing purpose, should be left free for use for the purpose it has been reserved for. The said Circular further enjoined upon all the subordinate revenue officers not to process cases regarding the allotment or transfer of Kahcharai land in future. The said Circular was issued in terms of the advice received from the Administrative Department, vide no. Rev/S/123/2010, dated 12.08.2010.

It has been accordingly, submitted that the transfer of the aforesaid land to the Prisons Department by the impugned order dated 02.03.2022 issued by the Commissioner/Secretary to Revenue Department is plainly against the aforesaid Circular issued by the same Revenue Department. It has been submitted that the aforesaid land is a protected land, used as a grazing land for the villages and for recreational activities of the youth of the villages which contain ponds and temples, which requires to be preserved and should not be used for any other purpose other than for grazing purpose.

17. It has been submitted that the appellants have learnt as per information received from the authorities through applications filed under the Right to Information Act, 2005 that though there are 2018 Kanals and 06 Marlas of State land available in the village Dambra, yet there is no finding by the respondent authorities that no other alternative land is available in the village nor in any part of the UT of Jammu and Kashmir and as such, if Kahcharai land is used instead of State land which is 10 | P a g e abundantly available for construction of prison, the impugned order will be plainly contrary to the aforesaid decision of the of the Government as reflected in the Circular/Order dated 02.03.2022 issued by the Commissioner/Secretary to Revenue Department.

18. The appellants also claim that the Deputy Commissioner, Kathua had written to the Divisional Commissioner on 12.11.2021 that it had been reported that the land selected for the construction of High Security Prison is located far away about 50-55 kms. away from the District Court Complex, District Police Lines and Government Medical College and in view of the prevailing security scenario in the Jammu &Kashmir with past incidents of militant attacks, escaping of prisoners during transit time, to and fro the court after court hearing and for special medical treatment of the prisoners outside the jail hospital, the identified location is not suitable for the said purpose. It was also mentioned that the Inspector General, Prisons also had pointed out certain drawbacks about the said proposed site and requested for identifying land near the District Headquarter of Kathua. Thus, it was contended that when an important functionary like Inspector General of Prisons had expressed doubts about the efficacy of establishing the prison at the said location, it was unwise and undesirable on the part of the Government to proceed with the said project in the village of Dambra.

19. It has been also contended by the Ld. Counsel for the appellants that on an earlier occasion, the Office of the Assistant Collector, Kishtwar had issued an order on 15.02.2020 for eviction of unlawful encroachers from State/Kahcharai/Common/Forest Land in terms of directions issued by the Supreme Court in Jagpal Singh case and by this Court in PIL No. 19/2021 titled "SK Bhalla vs. State of J&K and others", Circular issued by the Financial Commissioner vide No. FC-LS/Misc-3744/2010 dated 09.12.2010 (referred to above), and other decisions of this Court which clearly underline the fact that Kahcharai Land is to be fully protected from unauthorized use and encroachment and the aforesaid action of the Government will be also applicable in the present case as the Kahcharai Land is sought to be used for some other purpose for which is not intended to be used.

20. The respondent authorities contested all these petitions by filing objections. Ms. Monika Kohli, Sr. AAG, submitting on behalf of the respondents contends that all the decisions of the Hon'ble Supreme Court relied upon by the appellants relate to illegal encroachment of public land/community land. But in the present case, the land had been utilized after being transferred by following proper procedure and after being approved by the competent authority and it is not a case of illegal occupation. As such, these judgments are not applicable in the present case.

21. It has been also submitted by Ms. Monika Kohli, Sr. AAG, on behalf of the respondents that construction of High Security Prison at village Dambra, Kathua District does not pose any threat to the environment, natural resources, as well as the ecosystem. Further, in lieu of the Shamalat Deh (Mehfooz Kahcharai) land measuring 148 Kanals 04 12 | P a g e Marlas transferred to the Prisons Department, State land measuring 160 Kanals 04Marlas situated in the same village had been transferred to the village to be utilized as Shamalat Deh (Mehfooz Kahcharai). Thus, the village is adequately compensated by transfer of State land.

22. It has been further submitted that at present there are 1218 Kanals and 04 Marlas of Shamalat land available in Dambra village, of which 148 Kanal of land were transferred to the Prison Department, in lieu of which the Government transferred 160 Kanals and 04 Marlas of State land to the village. Thus, at present, the village of Dambra has got 1230 Kanals and 8 Marlas of Kahcharai land available with it. Thus, the village possesses more than adequate Kahcharai land at their disposal.

23. It had been further submitted that in the process of use of the aforesaid Kahcharai land, no pond, water bodies or temple were damaged, since no such structure existed over the said transferred land and as such the allegations made by the appellants are false.

24. It has been submitted that pursuant to a meeting taken in the Ministry of the Home Affairs on 06.07.2021 regarding construction of a High Security Prison in Kathua, in J&K, the Prisons Department requested the Deputy Commissioner, Kathua for identification of a government land. Accordingly, the Deputy Commissioner, Kathua identified 148 kanals of village land at Dambra and the same was submitted to the revenue authorities. Necessary layout plan for the prison was prepared by the Police Housing Corporation, which was duly approved by the Ministry of Home Affairs vide Order no. 13030/45/2021-S(JKL), dated 13 | P a g e 19.01.2022. It was also contended that the Revenue Department, Government of Jammu and Kashmir, had accorded sanction and transferred the said identified land measuring 148 Kanals 04 Marlas to the Prisons Department for the purpose of construction of the High Security Prison vide Government order No. 36-JK (Rev) of 2022 dated 02.03.2022. Subsequently, Mutation No. 1901, dated 16.03.2022 was attested in favour of the Prisons Department. All these acts were duly approved by the Administrative Council.

25. Heard the Learned Counsel for the parties and perused the records.

26. Before we examine the applicability of the various decisions of the Hon'ble Supreme Court cited by the learned counsel for the appellants in support of their plea that the transfer of the Kahcharai land for the use of construction of High Security Prison in the village is against the directions of the Hon'ble Supreme Court, we would like to examine whether the process of transfer of the land was done in violation of any of the existing rules or orders issued by the Government of UT of JK in that regard.

27. The impugned transfer of the land vide order dated 02.03.2022 was issued by the Commissioner/Secretary to the Government, Revenue Department. The appellants/writ petitioners also had relied on a Government Order No. 30-Rev(S) of 2019 dated 05.03.2019 wherein it has been provided that proposals regarding transfer of state/departmental land for various public purposes shall be processed for consideration by the authorities in the manner mentioned therein. In the said order dated 14 | P a g e 05.03.2019 it has been mentioned that the Government in the Revenue Department shall be the competent authority to decide cases relating to transfer of state/departmental land exceeding 100 Kanals and up to 500 Kanals (free from encumbrances) to the State Government Departments for public purposes/departmental programmes.

28. In the present case, the order dated 02.03.2022 by which the land was transferred to the Prisons Department measuring 148 Kanals under Khasra No. 427 min (108 Kanals 01 Marlas) and Khasra No. 486 min (39 Kanals 19 Marlas) was issued by the Commissioner/Secretary, Revenue Department, and as such, the said transfer order dated 02.03.2022 was issued by the competent authority i.e., the Government, as provided under Government Order dated 05.03.2019. Hence, there was no violation of any order of the Government as regards the authority which transferred the land.

29. The impugned order of transfer of land dated 05.03.2019 also makes a reference to the decision of the Administrative Council dated 23.02.2022. Thus, it is evident that the said transfer of land had the approval of the Administrative Council of the Government of Jammu &Kashmir. It may be noted that after the enactment and implementation of the Jammu and Kashmir Re-organization Act, 2019, and creation of the UT of Jammu & Kashmir, the Lieutenant Governor of the UT is responsible for the administration of the UT of Jammu & Kashmir. It has been provided under Section 14 of the Re-organization Act, 2019 that there shall be an Administrator appointed under Article 239 of the Constitution of India for the Union Territory of Jammu and Kashmir and shall be designated as Lieutenant (Lt.) Governor of the UT. Section 14 also provides for a Legislative Assembly. However, in absence of the Legislative Assembly, the Lt. Governor is primarily responsible for the administration of the UT for which the Lt. Governor issued an order creating an Administrative Council with the Lt. Governor as the Chairman and his Advisors as Members to dispose of cases mentioned in the "Second Schedule" to the Re-organization Act, 2019 involving legislation, including the issue of ordinances, proposals to summon or prorogue or dissolve the legislature of the State, address of the Lt. Governor to the legislature etc., or such matters as the Lt. Governor may direct to be placed before it, and the Chief Secretary is the Secretary to the Administrative Council. Thus, the Administrative Council takes all important policy decisions in the UT of Jammu and Kashmir.

30. Accordingly, if the aforesaid transfer of land by the Commissioner, Revenue Department to the Prisons Department was approved by the Administrative Council, the highest decision making authority in the UT, the Circular/Order issued by the Revenue Department on taken 05.03.2019 cannot come in the way of such decision taken by the Administrative Council. Further, we also agree with the submission advanced on behalf of the respondents that the transfer of land to the Prisons Department was to achieve certain public purpose, that is, to establish a High Security Prison which in our view, cannot be questioned or subjected to judicial review considering that it was a policy decision of the Government to establish such a prison in view of the prevailing situation in the UT of Jammu & Kashmir, which is afflicted by terrorist activities which are abated by inimical foreign forces and agencies. As also submitted by Ms. Monika Kohli, Sr. AAG, relying on the decision of the Hon'ble Supreme Court in Devendra Singh versus State of UP (Civil Appeal No.6293 OF 2011) decided on 03.08.2011, that it cannot be said that construction of a Jail does not serve public purpose.

31. We have also noted that in lieu of the land which have been taken from the village for the purpose of construction of the High Security Prison, proportionate State land had been transferred to the village to be utilized as Shamalat Deh (Mehfooz Kahcharai) land, thus the village has been adequately compensated.

32. We also have noted that there are sufficient Shamalat Deh (Mehfooz Kahcharai) land already available with the village. As per the records, after the transfer of the State land measuring 160 Kanals and 04 Marlas, there are altogether 1230 Kanals and 08 Marlas of Shamalat Kahacharai land available with the villagers of Dambra. Thus, it cannot be said by any stretch of imagination that the villagers are prejudiced in any manner by the transfer of the aforesaid land to the Prisons Department.

33. Nothing thus, has been brought to our notice about violation of any particular rule or statute in the aforesaid act of transfer of land. The aforesaid transfer of land was executed with due approval of the competent authorities, i.e., the Revenue Department and Administrative Council.

34. Under the circumstances, we are not able to subscribe to the submission advanced on behalf of the appellants that the transfer of the Shamalat Kahcharai land to the Prisons Department for the purpose of construction of High Security Prison is illegal, and in violation of the orders and rules applicable in the UT of Jammu and Kashmir.

35. Having satisfied that the transfer of Shamalat Deh (Mehfooz Kahcharai) land to the Prisons Department does not violate or contravene any of the extant orders or rules in this regard, we would proceed to examine whether such transfer amounts to violation of any direction or order of the Hon'ble Supreme Court as contended by the Ld. Counsel for the appellants.

36. Mr. Karan Sharma Ld. Counsel for the appellants had placed reliance on the decision of the Hon'ble Supreme Court in T.N. Godavarman Thirumulpad (supra) which deals extensively with sustainable development and need for protection of environment by observing that derivation of economic benefit must be subordinated to ensure environmental stability and maintenance of equally ecological balance and non fulfillment of this principle would be violative of Articles 14 and 21 of the Constitution. It was also observed that economic development at the cost of degradation of environment and depletion of forest cover would not be long lasting and as such, development would be counter productive. The Hon'ble Supreme Court was also concerned with the dwindling forest cover in India and emphasized the need for overall development and systematic approach. While there cannot be any difference of opinion about such observations made by the Hon'ble Supreme Court for protection of forest and preservation of environment for sustainable development, it may be noted that Hon'ble Supreme Court has not placed any blanket ban on the use of forest land. In any event, in the present case, the land in issue does not come under forest area, but it is essentially a grazing ground as also contended by the appellants. Further, the transfer of the land to the Prisons Department is also for a specific public purpose which was done by the competent authority.

37. Much emphasis had been laid on the decision of the Hon'ble Supreme Court in Rameshbahi Virabhai Chaudhary (supra) by picking out a particular paragraph in the said decision in which it has been observed that Kahcharai land can be used only for the purpose for which it is permitted to be used and if there is a user contrary to the permissible user, whether by the state or by any third party, the same cannot go on. It is to be noted that the said observation was made in the context of the facts involved in the said case, that is, encroachment in the village Kahcharai land by 72 persons by constructing residential houses. A plea was taken that some of the encroachers belong to Scheduled Castes and Scheduled Tribes and socially, economically backward classes and they had been in occupation for a long period, and they could not have been evicted without providing alternative accommodation. The Hon'ble Supreme Court after examining the facts of the case, observed that only three persons were entitled to alternative accommodation as others were 19 | P a g e having the alternative accommodation. It was in that context that the aforesaid observation was made by the Hon'ble Supreme Court. Hence, in our opinion, the said case dealing with encroachment will not be also applicable in the present case.

38. In Jagpal Singh's case, the Hon'ble Supreme Court was dealing with a case of large-scale encroachment of a village Gram Panchayat land and the encroachers were claiming regularization of such encroachment on the plea of long occupation. The Hon'ble Supreme Court noted with disdain the complicity of the administration in allowing unauthorized encroachment and also in directing regularization of encroached land by recovering the cost of the land on the plea that huge amounts had been spent by the encroachers on the encroached land. In that context, it was observed by the Hon'ble Supreme Court that the common interest of villagers should not be allowed to suffer merely because unauthorized occupation had been subsisting for many years, and accordingly, directed removal of the construction and restoration of possession of the village land to the Gram Panchayat. In that context, the aforesaid observations were made and directions were issued to all the state Governments to prepare schemes for eviction of illegal, unauthorized occupants of Gram Sabha, Gram Panchayat, Porambakkam, Shamlat land. In the present case, no encroachment of village land is involved but it is a case where the state authorities had transferred Shamalat Deh (Mehfooz Kahcharai) land to the Prisons Department after following due process and after being approved by the competent authority for a public purpose and as such, in our view the aforesaid observations of the Hon'ble Supreme Court cannot come in the way of the transfer of land in the present case.

39. Construction of a High Security Prison in the UT of Jammu and Kashmir is the need of the hour in view of the prevailing situation in the UT, which is afflicted by violence and terrorism sponsored by inimical force from across the border, which obviously would entail and involve detention of high value prisoners who would be required to be kept in very secure prisons. Thus, the construction of a High Security Prison is not only in public interest, but would subserve the interest and security of the nation.

40. We also have noted that the construction of this High Security Prison does not totally obliterate the grazing grounds of the village or the Shamalat Deh (Mehfooz Kahcharai) land available in the village. In fact, as discussed above, there are sufficient and large areas of Shamalat Deh (Mehfooz Kahcharai) land already still existing in the village. Further, the village had been adequately compensated by transfer of State land to the village to be utilized as Shamalat Deh (Mehfooz Kahcharai) land by the villagers.

41. Thus, keeping the public interest involved in the construction of the High Security Prison which is necessary for the security of the nation, we are of the view that the decisions of the Hon'ble Supreme Court cited by the Ld. Counsel for the appellants are not applicable in the present case. In our opinion, the aforesaid decisions could not be invoked to come in the way of an important project required in public interest and for the security of the Nation.

42. It has been also brought to our notice by the Ld. Sr. AAG for the respondents that earlier, this Court had the occasions to deal with similar issues of transfer of Shamlat Deh (Mehfooz Kacharai) land for construction of government institutions and this Court had allowed such transfers for public purposes by drawing our attention to the decision in Villagers of Anzwalla Versus State Of J&K & Ors. 2012 (3) JKJ[HC]

213. We have perused the aforesaid judgment.

43. We are of the view that there are precedents in the past where Shamalat Deh (Kahcharai) land had been allowed to be transferred for construction of public institutions and for public purposes. In the said case of Villagers of Anzwala (supra) the petitioners therein had filed the writ petition questioning the transfer of certain Shamalat Deh land to the Health Department for construction of Primary Health Centre. It was contended by the petitioners therein that the land is "Mehfooz Kahcharai Land" and is reserved for grazing purposes and hence, cannot be utilized for any other purpose. The said contention was resisted by the State taking the plea that it was necessary for providing better health care facilities to the public in general, and, more particularly to the rural population of the area. It was held by this Court that Kahcharai land is the property of the Government and villagers have no individual rights on the said land and in view of the interests of the public in general, the Government was within its powers to transfer the Kahcharai land in question for the aforesaid public purpose. It was thus observed as follows:

"5. It is settled position of law that Kahcharai Land is the property of the Government, hence, the villagers had no individual rights or interest on the said land. The Government is within its powers to acquire it, when the same is for the public purpose, more so, when the amount of compensation on account of the land in question will be utilized by transferring the same to the village Panchayat in terms of Cabinet Decision No. 355 dated 27.03.1979 read with Government Order No. Rev (LAK) 275 of 1979 dated 28.09.1979. A plain reading of the provisions of the Land Acquisition Act and the Government order aforementioned, clearly establishes that the Kahcharai Land can be utilized for the public purpose, when alternate and suitable land is not available.

6. This Court in case Habibullah Sheikh v. State of J&K, 2009 (1) SLJ 150, 2008 (3) JKJ 170[HC], incidentally of which I am the author, has held that Kahcharai Land can be acquired for public purpose and the amount of compensation in lieu thereof is payable to the concerned Panchayat, in whose jurisdiction land falls, to be spent for welfare of the community of the area in question. It would be apposite to reproduce the paragraphs 5 and 6 of the judgement, which read as follows:

"5. The petitioners have no right or interest over the said land. It is virtually a property of the government but meant for grazing purposes. If Kahcharai land is to be acquired for any public purpose the amount is to be spent for welfare of the community. Division Bench of this Court in case titled [1]Gh. Mohammad Bhat & Others v. State and Anr. reported as SLJ 1981 J&K 254 has held that if Kahcharai land is acquired, the compensation is payable to the concerned Panchayat in whose jurisdiction land falls. It is the property of the community.

6. If Kahcharai land is acquired, the petitioners have no right to challenge the same. However, the compensation amount is to be utilized for the benefit of the villagers. The villagers are not before the Court. The writ petitioners have filed writ petition in individual capacity. The electric department has specifically averred that land came to be acquired for the purposes of construction of Grid Station for public purpose. The petitioners cannot seek any relief against the respondents-Electric Department" 

44. We are of the view that the aforesaid decision of this Court in Villagers of Anzwalla (supra) will be squally applicable in the present case.

45. The appellants/villagers of Dambra may have a right to enjoy the Samalat Deh (Mehfooz Kahcharai) land in the village, yet it cannot be said that the land belongs to them. The State is ultimately the custodian of such a land as a trustee for such land to be used by the villagers for their benefit. It cannot be said that the villagers are the owners of the Shamalat Deh (Mehfooz Kahcharai) land. Thus, if such land is utilized for a public purposes, it cannot be said that the legal rights of the villages are infringed.

46. We are, thus, satisfied that the transfer of Shamalat Deh (Mehfooz Kahchari) land by the State vide order dated 02.03.2022 is valid. Hence, the subsequent acts of the authority in issuing NIT and constructions made on the transferred land do not warrant interference from our end.

47. Under the circumstances, after hearing the parties and on perusal of the record and for the reasons discussed above, we are of the opinion that there is no merit in these writ petitions as well as in these appeals and accordingly, the appeals deserve to be dismissed as being devoid of merit.

48. We, however, have not examined the correctness or otherwise of the reason given by the Ld. Single Judge in dismissing the writ petitions on the ground of lack of bona fide of the petitioners in filing the writ petitions, as the appeals have been dismissed after considering merit in these appeals.

49. Consequently, all the appeals LPA No. 185/2023, LPA No. 186/2023 and LPA No. 187/2023 are dismissed.

50. Registry to place a copy of this order in each file.

(MOKSHA KHAJURIA KAZMI)                     (N. KOTISWAR SINGH)
                    JUDGE                                                  CHIEF JUSTICE

SRINAGAR

01.11.2023

Gauhati HC in Tetlirtol Unnayan Samiti & Ors. vs. State of Assam [06.11.2023]

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : WP(C)/23/2015

TETLIRTOL UNNAYAN SAMITI and 12 ORS
REP. HEREIN BY ITS PRESIDENT MD. MONOWAR HUSSAIN HAVING ITS
OFFICE AT VILLAGE TETELIRTOL, MOUZA- JANIA DIST. BARPETA,
ASSAM.

2: MONOWAR HUSSAIN
S/O MD. SANU KHAN R/O VILL- TETLIRTAL
MOUZA- JANIA DIST. BARPETA
ASSAM.

3: BAHAZ UDDIN
S/O NAYEJ UDDIN R/O VILL- TETLIRTAL
MOUZA- JANIA DIST. BARPETA
ASSAM.

4: ABBAS ALI
S/O IMAM ALI R/O VILL- TETLIRTAL
MOUZA- JANIA DIST. BARPETA
ASSAM.

5: ABDUL MAZID
S/O ABDUL GONI R/O VILL- TETLIRTAL
MOUZA- JANIA DIST. BARPETA
ASSAM.

6: JAHIDUL ISLAM
S/O MANDAJ ALI R/O VILL- TETLIRTAL
MOUZA- JANIA DIST. BARPETA
ASSAM.

7: BASER ALI
S/O BAHAJ UDDIN R/O VILL- TETLIRTAL
MOUZA- JANIA DIST. BARPETA
ASSAM.

8: UHAR ALI
S/O IMAM ALI R/O VILL- TETLIRTAL
MOUZA- JANIA DIST. BARPETA
ASSAM.

9: IDRISH ALI
S/O AANJU MIA R/O VILL- TETLIRTAL
MOUZA- JANIA DIST. BARPETA
ASSAM.

10: RAIMAN NESSA
C/O KANTU SIKDAR R/O VILL- TETLIRTAL
MOUZA- JANIA DIST. BARPETA
ASSAM.

11: ABJAL KHAN
S/O USMAN ALI R/O VILL- TETLIRTAL
MOUZA- JANIA DIST. BARPETA
ASSAM.

12: ABDUL KHALEQUE
S/O RUSTAM ALI R/O VILL- TETLIRTAL
MOUZA- JANIA DIST. BARPETA
ASSAM.

13: RASEDA BEGUM
W/O RAMJAN ALI R/O VILL- TETLIRTAL
MOUZA- JANIA DIST. BARPETA
ASSAM

VERSUS

THE STATE OF ASSAM AND 3 ORS
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
REVENUE REHABILITATION AND DISASTER MANAGEMENT
DEPARTMENT, SACHIVALAYA, GUWAHATI- 781006.

2:THE DEPUTY COMMISSIONER

BARPETA DISTRICT
BARPETA
ASSAM.

3:ADDITIONAL DEPUTY
COMMISSIONER
BARPETA
DIST. BARPETA
ASSAM.

4:THE CIRCLE OFFICER
BAGHBAR REVENUE CIRCLE
BAGHBAR DIST. BARPETA
ASSAM

For the Petitioner (s) : Mr. B.D. Goswami, Advocate.
                        Mr. J.M. Gogoi, Advocate.

For the Respondent (s) : Mr. N. Goswami, Advocate.

HONOURABLE MR. JUSTICE DEVASHIS BARUAH
BEFORE

Order

06.11.2023 

The instant writ petition has been filed by 13 Petitioners being aggrieved by the notices issued to evict the Petitioner Nos. 2 to 13 by the Circle Officer, Baghbar Revenue Circle dated 30.12.2014 in respect to Encroachment Case No. 4/2006-07.

2. It is the case of the Petitioners herein that the Petitioners are river erosion affected persons and they are entitled to settlement over the land under their possession and as such the Petitioners have approached this Court challenging the said notices.

3. Mr. N. Goswami, the learned counsel appearing on behalf of the Respondent Nos. 2, 3 & 4 submits that as per the Government Land Policy of 2019 as well as also the judgment of the Supreme Court in the case of Jagpal Singh vs. State of Punjab reported in (2011) 11 SCC 396, the question of settlement of the Petitioners over the said lands does not arise inasmuch as those lands have been specifically earmarked as village grazing reserve.

4. Mr. B.D. Goswami, the learned counsel appearing on behalf of the Petitioners submits that although the Petitioners may not have a right to get the settlement over the lands presently under their possession in view of the well settled principles of law laid down in the case of Jagpal Singh (supra), but the Petitioners being erosion affected persons are entitled to settlement of Govt. waste lands, to which the Petitioners may be given the liberty to file individual applications within a stipulated time and the Petitioners should not be disturbed till such applications are disposed of.

5. After hearing the learned counsels for the parties, this Court is of the opinion that the question of interference with the notices impugned in the instant proceedings does not arise inasmuch as the Petitioners herein have no right to remain in possession or even get settlement of the lands which have been specifically earmarked for village grazing reserve. Be that as it may, the materials on record clearly show that the Petitioners are erosion affected persons and as such would be entitled as per Government Land Policy of 2019 for seeking allotment/settlement of Government waste lands provided they meet the eligibility.

6. Accordingly, this Court therefore disposes of the instant writ petition thereby granting liberty to the Petitioners herein to file individual applications before the District Commissioner, Barpeta within 30 days from the date of the instant order as per the provisions of the Government Land Policy of 2019. The Respondent Authorities as well as the Revenue Department of the Government of Assam shall duly consider such applications as per the extant Land Policy. It is further made clear that till the said applications are not disposed, the Respondent Authorities shall not disturb the possession of the Petitioners over the lands in question.

7. With the above observations and directions, the instant writ petition stands disposed of.

Punjab & Haryana HC in Harnek Singh vs. State of Punjab [02.06.2023]

Neutral Citation No:=2023:PHHC:080920-DB 

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH 

CWP-22863-2021 

Date of decision : 02.06.2023 

HARNEK SINGH                                                                                                 -PETITIONER 

VERSUS 

STATE OF PUNJAB AND ORS.                                                                    -RESPONDENTS 

CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR 

                HON'BLE MR. JUSTICE KULDEEP TIWARI 

Present: Mr. Rai Singh Chauhan, Advocate with 

Mr. Rohit Sapehiya, Advocate and 

Ms. Deepika Chauhan, Advocate for the petitioner. 

Ms. Monika Jalota, Sr. DAG, Punjab. 

Mr. B.S. Ichhewal, Advocate for the respondent No.8. 

*** 

KULDEEP TIWARI, J.

1. Through the instant writ petition, the petitioner has sought the issuance of a mandamus upon the official respondent(s) concerned, to consider the grievance of the petitioner, as carried in the representation dated 13.08.2021 (Annexure P-5), and, also to conduct an inquiry in terms of the directions, as carried in Annexure P-6, issued by the respondent No.2, on the premise that the Sarpanch of the Gram Panchayat concerned (respondent No.9), has constructed a community hall over the disputed pond (Chappar) in Village Badial by filling it with sand, which exists for the last more than 50 years and was used for common purposes by the inhabitants of the village concerned.

2. By placing reliance upon the judgment passed by the Hon'ble Supreme Court, in case titled "Jagpal Singh and others V/s State of Punjab and others", 2011(1) ICC 742, the learned counsel for the petitioner has argued that the factual matrix of the present case causes breach of the directions, as laid down by the Hon'ble Supreme Court in the case (supra), therefore, he has sought the indulgence of this Court, to take stern action against the private respondent No.9 and has also sought the restoration of the disputed pond to its original condition.

3. This Court, while issuing notice of motion in the present case, had passed the hereinafter extracted order:-

"The petitioner has approached this Court praying for a writ of mandamus directing the respondents to consider the grievance of the petitioner as highlighted in the representation dated 13.08.2021 (Annexure P-5), whereby the Deputy Commissioner, Hoshiarpur was called upon to look into the matter with regard to the encroachment on the Pond (Chappar) of village Badial as the pond has been filled in and construction is being carried out on the same. It has been asserted that in the revenue record as well as the other known facts for more than 50 years, the pond was in existence which has been filled in for carrying out illegal constructions. This act on the part of the Gram Panchayat itself, amounts to encroachment on the pond i.e. Khasra No.438, in violation of the provisions of the statute as also the judgment of the Hon'ble Supreme Court in 'Jagpal Singh and others Vs. State of Punjab and others, Civil Appeal No.1132 of 2011 decided on 28.01.2011' and as on to the judgment of this Court in 'CWP-9885-2020 titled as Terjinder Kumar and others Vs. State of Punjab and others' decided on 15.07.2020 (Annexure P-3). It has further been asserted that not only this, even the Director Rural Development and Panchayat, Punjab had vide communication dated 08.09.2021 addressed to the District Development and Panchayat Officer, Hoshiarpur (Annexure P-6) and vide letter dated 15.09.2021 sent by the Director Land Records, Punjab (Annexure P-7) to the Deputy Commissioner, Hoshiarpur had called upon these authorities to inquire into the allegations that has been made by the petitioner with regard to filling up of the pond and making construction therein but despite the same, no action has been taken. Petitioner has also approached the Deputy Commissioner, Hoshiarpur vide complaint dated 08.10.2021 (Annexure P-8) but without any response thereto as well. He, on this basis, asserts that the action on the part of the Gram Panchayat is totally unacceptable and in violation of the law laid down by the Hon'ble Supreme Court and this Court and also in violation of the statutory provisions of the Punjab Village Common Lands (Regulation) Act 1961.

Learned counsel for the State of Punjab prays for an adjournment to seek instructions. Let the Deputy Commissioner, Hoshiarpur and also the District Development and Panchayat Officer, Hoshiarpur respondent Nos.4 and 6 respectively file their specific affidavit as to what action has been taken by them in pursuance to the representation/ directions received from the office of the Director Rural Development and Panchayat Punjab and Director Land Records, Jalandhar, respondent Nos.2 and 3, within a period of four weeks from today.

Status quo with regard to construction, if any, be maintained on the land in question i.e. Khasra No.438 till the next date of hearing. The Deputy Commissioner, Hoshiarpur shall ensure that no further construction is carried out on the land referred to above.

Adjourned to 21.12.2021."

4. In response to the notice being issued by this Court, the official respondent(s) concerned furnished their reply, through an affidavit sworn by respondent No.6, i.e. District Development and Panchayat Officer, Hoshiarpur. However, a perusal of the reply (supra) reveals rather a completely contrasting picture, than the one canvassed by the petitioner, in the instant writ petition. The reply (supra) unfolds that Village Badial Sainian is a small hamlet, comprising of only about 26 houses, with a population of about 150 individuals. It further reveals that, as per the relevant revenue record(s), a "Gair Mumkin Pond", measuring 64 Marlas, was reserved during consolidation operations, but within the "abadi deh" of the village concerned, over Khasra No.438/1 (3-4), however, a government primary school was constructed over some part of the khasra number (supra), inasmuch as, the said school was constructed approx. upon 5-6 marlas, about 50 years ago. Another chunk of 5-6 marlas of land, in front of the said school, i.e. between the street and the school, is also being used for ingress and egress from the school. Apart from this, another area measuring 30 marlas is used as playground by the children of the village concerned. Ultimately, after utilization of the above portions of land, in the above manner, which was rather reserved for "Gair Mumkin Pond", only an area measuring 10 marlas remained vacant, however, this area was also used for accumulating sullage and dirty water of the village concerned. The reply (supra) is supported by a detailed map, depicting therein the exact position, as exists at the spot. It further transpires from the reply (supra) that a Gurudwara is also situated near the above land reserved for "Gair Mumkin Pond".

5. Therefore, considering the ill effects of accumulation of sullage and dirty water, in the above portion of "Gair Mumkin Pond" falling in "abadi deh", as well as the health hazards arising therefrom, an NRI of the village concerned, namely Tirath Singh, who was interested in philanthropist activities, offered to donate 30 marlas of his private land for relocation of the pond. Even the said NRI also volunteered to lay the pipelines upto the relocated pond and also to construct a community hall after filling the said pond existing within "abadi deh".

6. In pursuance of the above welfare gesture of the NRI concerned, the Gram Sabha concerned, vide Resolution dated 10.06.2020, resolved to re- locate the pond outside the "abadi deh". Moreover, the resolution (supra) also gathered support from the circular bearing No. C/H-95/22769 dated 29.08.1995, issued by the Civil Surgeon, Hoshiarpur, who opined therein that a new pond cannot be excavated within the Phirni/Lal Lakir of the village concerned. Faced with the above life hazard problems and the instructions issued by the Civil Surgeon concerned, the inhabitants of the village concerned, decided to relocate the pond outside the "abadi deh", with the financial assistance of an NRI of the village concerned.

7. Therefore, a new pond was got excavated on 30 marlas of land, which was donated by the NRI concerned, and the NRI concerned also got connected the out drains of sullage water of the village concerned, through a pipeline to the newly excavated pond, at his own expenses, which were to the tune of approx. Rs.2.91 lacs. Even the Executive Engineer concerned had also approved the laying of pipeline to the newly excavated pond, being technically correct.

8. After shifting of the original pond outside the "abadi deh", which was existing over Khasra No.438/1, upon an area measuring 10 marlas, the area of the original pond was filled up with sand and thereupon, a community hall was constructed thereon for the utilization by all the inhabitants of the village concerned. An expenditure of approx. Rs.15 lacs was incurred on the construction of this community hall, which was borne by all the residents of the village concerned and by the NRI concerned.

9. The hereinabove recorded facts reveal that the petitioner has filed the instant petition by concealing the material facts from this Court. Moreover, from a perusal of the record(s), it is revealed that the petitioner is neither an inhabitant nor a proprietor of the village concerned, which consequently gives rise to an inference that he has filed the present writ petition, not for any bonafide reason, rather for some extraneous consideration. This inference gains corroboration from the petitioner failing to make complete compliance of the order made by this Court on 09.01.2023, wherein, this Court had specifically directed the petitioner to place on record, the requisite document(s) to establish his locus standi, however, the petitioner has placed on record only a Jamabandi, which depicts that he has a very minimal share in a joint land in the village concerned. Apart from this Jamabandi, the petitioner has not produced any document on record to establish, that he is the original proprietor or pattidar of the village concerned. The order made by this Court on 09.01.2023 is reproduced hereunder:-

"1. After hearing the learned counsel for the parties for some time, the learned counsel for the petitioner, at this stage, has not been able to prima facie justify his locus standi to maintain the instant petition, before this Court.

2. Therefore, as prayed for, he is directed to place on record the list of bartandarans, prepared, and, maintained by the Patwari of the halqa concerned, with echoings thereins of the petitioner being the bartandaran in the halqa concerned.

3. List on 11.4.2023."

10. Although, the concealment of material facts (supra) and the non- establishment of locus by the petitioner, are sufficient to dismiss the present petition with costs, however, since the dispute involved in the present case, relates to re-location of a pond from within the "abadi deh" to a site outside the "abadi deh", therefore we deem it apt to further examine the matter.

11. It is not the case of the petitioner that the Sarpanch of the Gram Panchayat concerned had, with any malafide intention, re-located the pond, rather out of the total area reserved for pond, some portion had already been utilized by the government, by constructing a school about 50 years back, which still exists at the site concerned. Furthermore, some portion is used for ingress and egress from the said school, and, also as a playground by the children of the village concerned. After such utilization of this area, only an area measuring 10 marlas remained vacant, however, that too was used for discharge of sullage and dirty water of the village concerned. The consequence of such discharge of sullage and dirty water was spreading of life endangering diseases in the village concerned, thereby making the inhabitants of the village exposed to life hazards. Although the above acts, which though are result of a bonafide necessity of the entire villagers, may not have the sanctity of law, however, since the same have been done for the benefit of all the inhabitants of the village concerned and with no particular individual getting benefit from the above acts of Gram Sabha, resultantly the acts (supra) cannot invite wrath of this Court.

12. Insofar as the judgment (supra), as relied upon by the learned counsel for the petitioner, is concerned, the same also does not have any apt applicability to the case in hand. The Hon'ble Supreme Court, in the judgment (supra), while directing the respective Chief Secretaries of all the State Governments to prepare a scheme for eviction of illegal unauthorized occupants, upon Gram Sabha/Gram Panchayat/Shamlat deh land, and thereafter, restoring possession thereof to the Gram Panchayat(s) concerned, also has assigned relaxations for regularizing possession(s) in exceptional cases, vis-a-vis, where the land 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 existing on such land. Since, over some portion of the disputed land, a government school and a community center have been constructed, thereby with the same subserving a public purpose, or, the same being an educational institution and a public utility center, thus make them fall within the exception (supra), as carved in the judgment (supra) and therefore, the same are required to be regularized. The directions issued by the Hon'ble Supreme Court, in the judgment (supra), are extracted hereunder.

"22. Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/Poramboke/Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land."

13. Village ponds are the epicenter of rural life and they also maintain balance in a fragile ecosystem. In the present case, the pond has been virtually converted into a disposal point for sullage and dirty water, which instead of maintaining balance of ecosystem in the village concerned, rather became a flash-point for spreading of various diseases. Therefore, considering the fact that the pond has already been converted into a school building and a community center, we do not find it appropriate to now order the demolition of these buildings, which are in fact, meant for the benefit of the inhabitants of the village concerned, especially considering the fact that an alternate pond has also been excavated, on the land donated by the NRI concerned, outside the "abadi deh". Therefore, in the light of peculiar facts and circumstances, we deem it appropriate to issue specific directions to the official respondent(s) concerned to prepare and thereafter, implement a comprehensive action plan for proper functioning of the newly constructed pond, so that the same can serve the purpose, which otherwise was meant to be served by the original pond.

(i) to ensure the transfer of the newly excavated pond's land in favour of the Gram Panchayat concerned, which was gifted by the NRI concerned for this purpose;

(ii) to ensure that in future, the land of pond shall not be converted or used for any other purpose;

(iii) to ensure proper installation and maintenance of treatment facilities in the village, so that sullage water of the village concerned can be safely disposed off;

(iv) to ensure proper disposal of sullage water after treatment and to ensure that the same is not disposed of in the pond;

(v) to ensure identification of sources of pollution(s) near the pond and thereupon ensure removal of such pollutant(s);

(vi) to ensure environment restoration and replenishment of surface water;

(vii) Department of Rural Development and Panchayat shall ensure providing the requisite infrastructure, such as pumping machinery, channels and pipe system for utilization of pond water;

(viiii) Department of Rural Development and Panchayat shall further ensure providing the necessary treatment facilities for proper maintenance and management, in a scientific manner, of the village pond;

Apart from the above issued directions, no further intervention is required to be made in the present writ petition. The present petition is disposed of accordingly.

The compliance report in respect of the above issued directions be submitted by the competent and responsible functionary concerned, within three months from today.

(SURESHWAR THAKUR)                                         (KULDEEP TIWARI) 

    JUDGE                                                                      JUDGE 

02.06.2023