Uttarakhand High Court in Mahmood & Ors. vs. State of Uttarakhand & Ors. [10.06.2021]

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL 

ON THE 10TH DAY OF JUNE, 2021 

BEFORE: HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI 

Writ Petition (M/S) No. 1018 of 2021 

BETWEEN: Mahmood & another ...Petitioners 

(Mr. T.A. Khan, Senior Advocate) 

AND: State of Uttarakhand & others ...Respondents 

(Mr. J.S. Bisht, learned Standing Counsel for the State of Uttarakhand and Dr. K.H. Gupta, learned counsel for respondent no. 4.) 

JUDGMENT

1. By means of this writ petition, petitioners have sought following reliefs:-

(i) To issue a writ, order or direction in the nature of certiorari quashing the order dated 17.04.2021, passed by Sub Divisional Officer (Dy. Collector), Bazpur, District Udham Singh Nagar (Annexure No. 2 to the writ petition)

(ii) To issue a writ, order or direction in the nature of certiorari quashing the report of Advocate Commissioner dated 17.04.2021 (Annexure No. 15 to the writ petition).

(iii) To issue a writ, order or direction in the nature of mandamus directing the respondent (Dy. Collector) to get measure the land belonging to category IV in possession of the petitioners measuring about 950 sqmtr leaving out 75 feet from the front of National Highway and leaving out the land of Nala (measuring the width of Nala as 20 feet (6 meter) in the back side of the land in possession of the petitioners and the respondents may restrained not to cause hinderance in the possession of the petitioners over the land measuring about 950 sqmtr having the meets and bound of the measurements as mentioned in the site plan which is annexed as Annexure no. 11 to the petition.

2. It transpires that one Mohammad Akram had filed WPPIL No. 59 of 2016 for removal of encroachment over plot nos. 803, 827/1, 827/4 and 463 of Village Sultanpur, Pargana Bazpur, District Udham Singh Nagar, which was recorded as pond land (water body) in the Revenue Record.

3. The said writ petition was disposed of by Division Bench of this Court vide order dated 04.09.2018. Subsequently, on a recall application moved by the affected persons, the final order dated 04.09.2018 was recalled and certain directions were issued to the State Government vide order dated 03.12.2018. Operative portion of the order dated 03.2.2018 is reproduced below:-

17. As the petitioner himself sought a mandamus only for a directions to be issued, in terms of the law declared by the Supreme Court in Jagpal Singh & Others (supra), we are of the view that the Division Bench was not justified in issuing directions, which not only run contrary to what the Supreme Court has held, but also go far beyond the relief sought for in the writ petition itself. We consider it appropriate, therefore, to recall the order passed in this writ petition dated 04.09.2018, and instead direct the Government of Uttarakhand to prepare a scheme for eviction of illegal/unauthorized occupants of municipal lands in the State, which are covered by water bodies such as lakes, ponds, streams, water- courses etc. As directed by the Supreme Court the scheme shall provide, among others, for a showcause notice to be given to the encroachers and to be provided an opportunity of a brief hearing. The State Government shall also take note of the exceptions carved out by the Supreme Court in the aforesaid judgment regarding lease granted under a Government Notification to landless labourers or members of the Scheduled Castes/Scheduled Tribes or areas where there exists a school, dispensary or other public utility on the land.

18. The scheme shall be prepared at the earliest and, in any event, not later than six months from the date of receipt of a certified copy of this order; and action shall be taken forthwith, after such scheme is formulated, to evict encroachers or unauthorized occupants from such land in accordance with the said scheme. Needless to state that, on such a scheme being prepared and notices being issued to those in possession of the land in terms of the scheme so formulated, it is open to persons in possession of such land, to whom the notices are given, to put forth all such defenses as are available to them in law including that the subject land, over which they are in possession, has not been a water body after the 1950 Act came into force.

4. Thereafter, Sub-Divisional Magistrate, Bazpur passed an order on 11.02.2021, whereby petitioners were asked to remove their encroachment over water body within thirty days and it was further provided in the said order that on the failure of the petitioners to remove their encroachment, the same shall be removed at the cost and expense of the petitioners.

5. Against the order dated 11.02.2021 passed by Sub-Divisional Magistrate, petitioners filed WPMS No. 555 of 2021. The said writ petition was disposed of vide order dated 09.03.2021. Relevant extract of the said order is reproduced below:-

"6. The dispute, which petitioners are trying to raise in the present writ petition involves disputed question of facts, namely, whether petitioners encroached upon land belonging to water-body or not; and further whether the land, which is presently under occupation of the petitioners, is in excess to the land for which they have applied for regularisation. For adjudicating such disputed question of facts, oral evidence would be needed besides report of the Survey Commissioner, therefore, this Court is not inclined to entertain this writ petition.

7. Having regard to the facts and circumstances of the case, the writ petition is disposed of with a direction to the Sub-Divisional Magistrate, Bajpur, District Udham Singh Nagar to get the land under occupation of the petitioners measured by a Survey Commissioner, within three weeks from the date of receipt of certified copy of this order. If, after the said measurement, it is found that petitioners have encroached upon the land belonging to the water-body or if it is found that petitioners are occupying more land than the land for which they have applied for regularisation, then petitioners encroachment upon such excess land shall be got removed, even by using force, if need be.

8. It is further made clear that petitioners shall be informed about the date and time of measurement of their land and it shall be open to the petitioners to remain present at the time when measurement of the land in question to be done by the Survey Commissioner. For a period of four weeks status quo, as on today, shall be maintained."

6. Pursuant to the direction issued in WPMS No. 555 of 2021, Sub-Divisional Magistrate, Bazpur vide order dated 01.04.2021 appointed one Mr. Sohan Lal Goyal - Advocate, as Survey Commissioner to measure the land of the petitioners. Survey Commissioner measured the land in the presence of petitioners and Revenue Officers on 12.04.2021 and submitted his report on 17.04.2021. The said report has been challenged in the present writ petition.

7. Mr. T.A. Khan, learned Senior Counsel appearing for the petitioners submits that the report submitted by the Advocate Commissioner is erroneous, therefore, deserves to be set aside.

8. Per contra, learned Standing Counsel appearing for the State submits that the Survey Commissioner had measured the land in question in the presence of the petitioners, after taking fixed points. Learned Standing Counsel further submits that the question whether the report of the Survey Commissioner is correct or not cannot be adjudicated in writ proceedings under Article 226 of the Constitution of India, as it is basically a question of fact.

9. This Court finds substance in the contention raised by learned Standing Counsel for the State. Whether petitioners have encroached upon a water body land or not is basically a question of fact. For resolving the dispute, this Court directed measurement of the land in question by a Survey Commissioner. The Survey Commissioner has submitted a report, according to which, petitioners have encroached upon water body land.

10. Learned Senior Counsel appearing for the petitioners now contends that the report submitted by the Survey Commissioner is erroneous and needs to be set aside with a direction to the authorities to re-measure the land in question in the presence of the petitioners.

11. In the humble opinion of this Court, the issue raised before this Court cannot be properly adjudicated in writ proceedings. Whether the report submitted by Survey Commissioner is correct or not cannot be decided in a writ petition. The prayer made by learned counsel for the petitioners for re- measurement of land also cannot be accepted because then it will be an unending exercise.

12. In such view of the matter, this Court declines to entertain this writ petition. Accordingly, writ petition fails and is hereby dismissed.

Uttarakhand High Court in Anil Kumar Gupta vs. State of Uttarakhand & Ors. [24.08.2018]

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition (PIL) No. 26 of 2010

Decided On: 24.08.2018

Appellants: Anil Kumar Gupta
Vs.
Respondent: State of Uttarakhand and Ors.

Hon'ble Judges/Coram: Rajiv Sharma, Actg. C.J. and Manoj Kumar Tiwari

JUDGMENT

Rajiv Sharma, Actg. C.J.

1. Present petition has been filed pro bono publico to highlight the unauthorized encroachments made on the footpaths and roads at Rishikesh leading to acute traffic jams throughout the towns of Uttarakhand. The petitioner has also highlighted the unauthorized constructions and encroachments made on the public land by the religious bodies including the pollution of river Ganga and financial irregularities in the Nagar Palika Parishad, Rishikesh. The petitioner has also highlighted that the respondents have not demolished Sai Mandir constructed on the public road, though the appeal was dismissed under Section 27 of the Uttar Pradesh Urban Planning and Development Act, 1973. The Nagar Palika has regularized 27 encroachers on the Government land at Virbhadra Marg.

2. The respondents have admitted 1127 encroachments in Ghat Marg, Mukherji Marg, Agnihotri Marg, Kshettra Road, Tilak Road, Lajpat Rai Marg, Bhairo Mandir, Gole Market, Chandreshwar Marg, Haridwar Marg, Hiralal Marg, Maniram Marg, Bengali Mandir Marg, Sudama Marg, Pushkar Mandir Marg, Jeevani Mai Marg, Subhash Chawk, Jhanda Chawk, Main Bazaar, Nabha House (Ghat Marg) in Rishikesh. The unscrupulous persons have encroached upon and constructed the shops over Saraswati Drain to the extent of about 57 meters. The respondents have also not evicted 145 encroachers, who have encroached upon National Highway-58. The petitioner has also placed on record the details of 500 persons who have encroached upon Railway Road, Shyampur Bye-pass Road, Pushulok, Bairage Marg, Veer Bhadra Road, Risikesh Doiwala Marg. As many as 13 unauthorized constructions have also been raised in Navin Mandi Sthal.

3. Initially, the Nagar Palika Parishad, Rishikesh has granted permission to the Sai Sewa Samiti on 28.05.2009, to raise the construction. Thereafter, it was withdrawn. The Haridwar Development Authority has ordered for demolition of temple on 08.07.2009 against which Sai Sewa Samiti filed an appeal before the Commissioner. The Commissioner has dismissed the same on 18.02.2010.

4. The petitioner has placed on record, the news item whereby 13 temples have encroached upon the public land. The illegal encroachment has led to the pollution in Saraswati Nala. The Saraswati Nala has not been cleaned for last 10 years. Even the Nagar Palika Parishad has constructed 13 buildings without obtaining the permission from the Haridwar Development Authority. The petitioner has also highlighted the financial irregularities committed by the Nagar Palika Parishad, Rishikesh including purchase and installation of Signal Lights in Rishikesh, decrease in collection of house tax, collecting house tax from the persons unauthorizedly occupying the Government land. The petitioner has prayed for the removal of encroachments from the public land, public roads, public paths and also demolition of unauthorized construction which was raised without obtaining the permission from Nagar Palika Parishad and Haridwar Development Authority. The petitioner has also highlighted that the temples are raising construction on public land with impunity.

5. The respondents have filed counter affidavits to the petition filed by the petitioner.

6. As far as Sai Sewa Samiti's case is concerned, it is stated that after the orders of Commissioner Garhwal, Sai Sewa Samiti has filed revision before the State Government and the proceedings were stayed. Latest status has not been placed on record.

7. It is stated that notices were issued to 1127 persons who have encroached upon the public paths as per the details given in paragraphs no. 4 and 5 of the writ petition.

8. The respondents have also taken a stand that notices were issued in the newspaper. Thereafter, District Magistrate was also requested to provide the assistance.

9. The petitioner has also filed his rejoinder affidavit. In the rejoinder affidavit, it is specifically brought to the notice of the Court that the District Magistrate has stated that no such request was made.

10. The counter affidavit filed by the respondents is evasive. The reply filed qua the unauthorized construction of temples on public land is also not satisfactory.

11. The petitioner has placed on record sufficient material to prove that the respondents are remiss in discharge of their statutory duties by permitting the citizens to raise unauthorized constructions/encroachments over the public paths, public roads including by the temples. The petitioner has also placed on record the photographs, depicting therein, that the temples have been built on the public land, that too on busy roads.

12. The Court has passed various orders from time to time, on the basis of which, supplementary affidavit has been filed. The contents of the supplementary affidavit are also not satisfactory. The large scale encroachment/construction could not be carried out without the connivance of the authorities. The authorities, instead of taking stern action against the encroachers of unauthorized construction, are shying away from enforcing the mandatory provisions of law.

13. The Haridwar Development Authority has stated that an action has been taken under Section 27 and 28 of the Uttar Pradesh Urban Planning and Development Act, 1973.

14. No person has a right to encroach upon the Government land. The temples cannot be permitted to come on busy roads and public lands. A stern action is required to be taken, the moment unauthorized construction is commenced. The Authority concerned looks other way when people start encroaching upon the Government land. It is the duty cast upon the authorities to ensure that no encroachment is made on the public land, forest land and public streets. The ordinary citizens living in Rishikesh town are put to lot of inconvenience due to regular traffic jams in the entire town due to encroachments made on the public roads. The Nagar Palika Parishad has also constructed toilet without permission.

15. The construction activities in Rishikesh are governed by the Master Plan enforced by the Haridwar Development Authority. The construction can only be raised as per the Master Plan and the byelaws framed by the Nagar Palika Parishad. Any person, who has raised construction, even religious bodies, in violation of the master plan and in breach of bye-laws, is required to be dealt with sternly.

16. Their Lordships of the Hon'ble Supreme Court in MANU/SC/0335/1991 : (1991) 3 Supreme Court Cases 341 in the case of Pratibha Cooperative Housing Society Ltd. and another v. State of Maharashtra and others have held as under:-

"6. It is an admitted position that six floors have been completely demolished and a part of seventh floor has also been demolished. It was pointed out by Mr. K.K. Singhvi, learned counsel for the Corporation that the tendency of raising unlawful constructions by the builders in violation of the rules and regulations of the Corporation was rampant in the city of Bombay and the Municipal Corporation with its limited sources was finding it difficult to curb such activities. We are also of the view that the tendency of raising unlawful constructions and unauthorised encroachments is increasing in the entire country and such activities are required to be dealt with by firm hands. Such unlawful constructions are against public interest and hazardous to the safety of occupiers and residents of multistoreyed buildings. The violation of FSI in the present case was not a minor one but was to an extent of more than 24,000 sq. ft. Such unlawful construction was made by the Housing Society in clear and flagrant violation and disregard of FSI and the order for demolition of eight floors had attained finality right up to this Court. The order for demolition of eight floors has been substantially carried out and we find no justification to interfere in the order passed by the High Court as well as in the order passed by the Municipal Commissioner dated November 13, 1990."

17. Their Lordships of the Hon'ble Supreme Court in MANU/SC/0064/1996 : (1995) 5 SCC 762, in the case of G.N. Khajuria (Dr) v. Delhi Development Authority in paragraph 10 have held as under:-

"10. Before parting, we have an observation to make. The same is that a feeling is gathering ground that where unauthorised constructions are demolished on the force of the order of courts, the illegality is not taken care of fully inasmuch as the officers of the statutory body who had allowed the unauthorised construction to be made or make illegal allotments go scot free. This should not, however, have happened for two reasons. First, it is the illegal action/order of the officer which lies at the root of the unlawful act of the citizen concerned, because of which the officer is more to be blamed than the recipient of the illegal benefit. It is thus imperative, according to us, that while undoing the mischief which would require the demolition of the unauthorised construction, the delinquent officer has also to be punished in accordance with law. This, however, seldom happens. Secondly, to take care of the injustice completely, the officer who had misused his power has also to be properly punished. Otherwise, what happens is that the officer, who made the hay when the sun shined, retains the hay, which tempts others to do the same. This really gives fillip to the commission of tainted acts, whereas the aim should be opposite."

18. Their Lordships of the Hon'ble Supreme Court in MANU/SC/0078/2011 : (2011) 11 Supreme Court Cases 396 in the case of Jagpal Singh and others v. State of Punjab and others have held that long duration of occupation or huge expenditure in making constructions thereon or political connections are no justification for regularizing such illegal occupations. This could only be resorted in the case where lease is granted to landless labourers or members of Scheduled Castes/Scheduled Tribes. Their Lordships have held as under:-

"2. 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 (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 such as ponds for various purposes e.g. for their cattle to drink and bathe, 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. They were generally treated as inalienable in order that their status as community land be preserved. There were no doubt some exceptions to this rule which permitted the Gram Sabha/Gram Panchayat to lease out some of this land to landless labourers and members of the Scheduled Castes/Tribes, but this was only to be done in exceptional cases.

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.

18. The present is a case of land recorded as a village pond. This Court in Hinch Lal Tiwari v. Kamala Devi (followed by the Madras High Court in L. Krishnan v. State of T.N.) held that land recorded as a pond must not be allowed to be allotted to anybody for construction of a house or any allied purpose. The Court ordered the respondents to vacate the land they had illegally occupied, after taking away the material of the house. We pass a similar order in this case.

23. Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/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."

19. Accordingly, we dispose of the writ petition by issuing the following mandatory directions:-

A. Respondent nos. 2, 3, 4 & 5 are directed to remove the unauthorized constructions/encroachments from the public land and the pavements in the Rishikesh Town.

B. Respondent no. 5 is directed to seal the commercial buildings/property constructed in the residential area against the master plan and building byelaws of the Haridwar Development Authority.

C. Respondent nos. 2 to 5 shall issue notices to the persons who have encroached upon the Government Land/pavement/Roads within a period of three weeks by permitting them to file reply within two weeks. Thereafter, necessary orders of demolition to be issued.

D. Respondent nos. 2 to 5 are directed to ensure due compliance of previous demolition orders, if not stayed by any Revenue Court or Civil Court.

E. Respondent nos. 2 to 5 are also directed to seal the religious places, if these have been constructed on public land/pavement without any authority of law.

Uttarakhand High Court in Prof. Ajay Singh Rawat v. Union of India & Ors. [10.07.2015]

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL 

Writ Petition (PIL) No. 31 of 2012 

Prof. Ajay Singh Rawat 

.....Petitioner 

Versus 

Union of India and others 

.....Respondents 

Mr. M.C. Pande, Senior Advocate as Amicus Curiae for the petitioner. 

Mr. V.B.S. Negi, Additional Advocate General assisted by Mr. Subhash Upadhaya, Chief Standing Counsel for the State. 

Mr. D.S. Patni and Mr. Ajay Singh Bisht, Advocates for Municipal Board, Nainital. Mr. Sandeep Kothari, Advocate for the Lake Development Authority. 

Coram: Hon'ble Alok Singh, J.

Hon'ble Servesh Kumar Gupta, J.

Hon'ble Alok Singh, J. (Oral) 

Mr. V.B.S. Negi, learned Addl. Advocate General appearing for the State, Mr. D.S. Patni, learned counsel, appearing for the Municipality, Mr. Sandeep Kothari, learned counsel, appearing for the Lake Development Authority and Mr. M.C. Pande, Senior Advocate, appearing as Amicus Curiae, have vehemently submitted that in this monsoon season, due to heavy rain, about 1300 cubic meter malba (debris) has flown to the Mall Road on 05.07.2015 from the nearby hill and has blocked the Mall Road completely. Further contended that yesterday too, due to heavy rain, again 250 cubic meter malba (debris) came down from the hill area on the Mall Road. Further contended that because of the encroachment removal drive being undertaken under the supervision of this Court and various directions issued by this Court, few nalas adjacent to Alka, India and Everest Hotels were cleaned, therefore, casualty could be avoided. Further stated that Vyapar Mandal and Hotel Association of Nainital have issued appeals in the newspapers to all the residents of Nainital to remove the encroachments themselves from the various roads, hills, catchment areas, water bodies and different nalas, wherein rainy water and natural water flows from different hills to Naini Lake. They further submitted that despite appeals being issued by District Administration, Social Workers, Vyapar Mandal and Hotel Association, few people are still adamant not to remove encroachments.

It is also reported that on 05.07.2015 heavy flow of water started flowing from the Chandni Chowk Hotel, which was also videographed by the District administration and few citizens of this city, which shall demonstrate that perhaps by making illegal encroachment over the barsati nala, Chandni Chowk Hotel has come up. They fairly submitted that to avoid heavy flood and untoward incident as happened in Srinagar in 2013 as well as in Kedarnath, encroachment should be removed forthwith from every nala, drain, water bodies, catchment areas and illegal constructions raised on the different hills of city of Nainital should also be demolished at the earliest. It is submitted that due to illegal constructions on different hills, more particularly, Saat Number and Sher Ka Danda, debris, boulders and sand is coming down causing damages to the properties of others as well as public properties.

It has further been pointed out that Sukha Tal Lake is natural water body, wherein water stores due to heavy rain and, thereafter, recharge in Naini Lake during Summer and Winter. However, few people in the garb of old entries made in the revenue record in their favour from the time of pre-independence era, are transferring the different plots in Sukha Tal area and have made illegal encroachments thereon. Few of them are Advocates, powerful businessmen as well as politicians. Further contended that every water bodies where natural water is stored from times immemorial vest in the Municipality as per Section 116 of the Municipality Act. Further contended that under the political pressure, every year lakhs of rupees are being spent to drain out the water from the Sukha Tal Lake to save the encroachers who have illegally raised the construction in the Sukha Tal area. It is pointed out that earlier boats were used to sail in the Sukha Tal Lake. They fairly suggested that this year this Court should issue directions not to drain out water from the Sukha Tal area and to remove all the encroachment from the Sukha Tal catchment area wherein natural and rain water stores.

We appreciate gesture shown by the learned counsel appearing for the parties.

It is really painful that despite various appeals being issued by the Hotel Association and Vyapar Mandal and social workers, still few people are in illegal encroachment/occupation over the public land and they are avoiding their dis-possession on one ground or another. Keeping in mind the urgent situation, we cannot permit them to raise objections on one ground or another.

Today, every member of the Bar has shared in the Court Room that had there been no order for removal of encroachment from different nalas adjacent to Hotel India, Alka and Everest, debris about 1600 cubic meter would have caused loss of several lives and properties.

We, therefore, direct District Administration, Municipality and Lake Development Authority, not to drain out water this year from the Sukha Tal Lake henceforth. They will mark the illegal construction in the catchment area of Sukha Tal Lake forthwith, in any case within 24 hours and shall issue appeals by public announcement to all the people who are residing in the catchment area of Sukha Tal Lake to vacate their properties forthwith, so that untoward incident may be avoided and whosoever despite appeals and requests being made by the District Administration is not vacating the property, shall be dis-possessed by using such force which learned District Magistrate deems fit. We further direct that all the illegal construction in the Sukha Tal Lake catchment area shall be demolished after serving short notice as directed by the Hon'ble Apex Court in the case of Jagpal Singh and others vs. State of Punjab and others reported in (2011) 11 SCC 396.

In the previous orders, we have directed that alleged encroachers may challenge the notices issued to them to remove encroachment before us, however, keeping in mind the urgent situation and urgent need of the hour to save the lives of the people, more particularly, the city of Nainital, in our opinion, encroachment should be removed immediately.

It is reported by Mr. M.C. Pande, learned Amicus Curiae, Mr. H.M. Bhatia, learned member of the Committee of Advocate Commissioners and Mr. D.S. Patni, learned counsel for the Municipality that they have personally visited Rama Cottage / Spring Field area yesterday and they found that it is on the nazul land. Further contended that one of the rainy nala, which is just above the CRST College is in a very dangerous and dilapidated condition which requires urgent treatment and repair to avoid untoward incident. Further contended that lease granted over the nazul land in the Rama Cottage / Spring Field Cottage area has expired, however, despite this fact, few builders and land mafias are plotting the area and are selling the plots to different innocent people. District Magistrate is directed to personally look into the matter and to make statement on the next date.

Mr. D.S. Patni, learned counsel appearing for the Municipality shall make statement on Monday as to when dog shed as proposed by him shall come up.

Mr. V.B.S. Negi, learned Addl. Advocate General shall make statement on Monday as to when fund as directed by us for the purpose of dog shed shall be released and shall show cause as to why it has not been released as yet.

It is pointed out that lot of encroachments have come up over the hill area known as Ward No. 7 and Sher Ka Danda. It is further pointed out that people have raised illegal constructions by putting sand-bags and raising the pillars between hilly slope and sand-bags and due to heavy rain, these illegal constructions may fall down at any time and there may be loss of lives and properties.

It is further pointed out that none of the construction at Ward No. 7 and Sher Ka Danda area has been sanctioned either by the Lake Development Authority or by the Municipality. District Magistrate and Secretary, Lake Development Authority are directed to visit the spot during the course of the day with the team of officers. They shall identify the illegal construction in the area known as Ward No. 7 and Sher Ka Danda and shall issue warning/appeal to vacate that area immediately to save the lives of the people residing therein and, thereafter, shall take all the appropriate steps to remove illegal encroachment from the Ward No. 7 and Sher Ka Danda area at the earliest. Action taken shall be brought to our notice on the next date.

Mr. Sandeep Kothari, learned counsel appearing for the LDA has pointed out that two kiosks constructed by the LDA in the new bus stand area have already been handed over to the Municipality, therefore, same can be removed therefrom with the help of the Municipality only.

In view of the above, we issue direction to the District Administration, the LDA and the Municipality to remove both the kiosks from the new bus stand area forthwith so that vacant area can be used to park atleast three more buses there.

District Magistrate may permit heavy vehicles of various Government Departments carrying transformers and necessary tools and equipments for the public use over the Mall Road considering the urgency. However, ordinarily, such permission should be during the hours when there is no crowd on the Mall Road.

It is pointed out that ponywalas have encroached upon the forest land near Bara Patthar area and are causing nuisance and pollution to the residents of nearby areas and different lakes including Sariyatal and Khurpatal lakes.

Mr. V.B.S. Negi, learned Additional Advocate General undertakes to remove all the encroachments from the forest area near Bara Patthar forthwith.

It is pointed out by Mr. Subhash Upadhyaya, learned Chief Standing Counsel that money has already been sanctioned by the Government to widen the road from Mohan Co. intersection to Gol Ghar near B.D. Pandey Hospital. Further contended that work shall commence at the earliest after inviting tenders.

List on 13.7.2015 at 03:00 p.m. Commissioner, Kumaon, District Magistrate, Nainital and Secretary, Lake Development Authority shall remain present in person.

Uttarakhand High Court in Mohammad Akram v. State of Uttarakhand & Ors. [Order dated 03.12.2018]

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL 

Writ Petition (PIL) No. 59 of 2016 

With Delay Condonation Application No. 18045 of 2018 

Recall Application No. 1467 of 2018 

Mohammad Akram                                                                                 ...Appellant 

Vs. 

State of Uttarakhand and others                                                         ...Respondents 

Mr. Pooran Singh Rawat, learned Counsel for the appellant. 

Mr. T.A. Khan, learned Senior Counsel assisted by Mr. A.K. Arya, learned counsel for the applicants in Modification Application No. 1483 of 2018. 

Mr. B.D. Pande, learned counsel for the applicants in Recall Application No. 1467 of 2018. 

Mr. Paresh Tripathi, learned Chief Standing Counsel for the State of Uttarakhand/respondent nos. 1 to 3. 

Mr. Kartikey Hari Gupta, learned counsel for respondent nos. 4 and 5. 

Dated: 03rd December, 2018 

Coram: Hon’ble Ramesh Ranganathan, C.J.

             Hon’ble R.C. Khulbe, J. 

Ramesh Ranganathan, C.J. (Oral) 

The application to condone the delay, caused in filing the recall application, is not opposed and is, therefore, ordered. Delay is condoned. 

2. Heard Sri Pooran Singh Rawat, learned Counsel for the appellant, Sri T.A. Khan, learned Senior Counsel for the applicants in Modification Application No. 1483 of 2018, Sri B.D. Pande, learned counsel for the applicants in Recall Application No. 1467 of 2018, Sri Paresh Tripathi, learned Chief Standing Counsel for the State of Uttarakhand-respondent nos. 1 to 3, and Sri Kartikey Hari Gupta, learned counsel for respondent nos. 4 and 5-Nagar Panchayat, Sultanpur. With their consent this application is being disposed of. 

3. This application is filed to recall the order passed by this Court earlier in this writ petition on 04.09.2018. While the aforesaid order was passed by a Division Bench comprising of Justice Rajiv Sharma and Justice Manoj Kumar Tiwari, Justice Rajiv Sharma has since been transferred and Justice Manoj Kumar Tiwari is on leave today. As the applicants, in the recall application, express urgency, this Bench is taking up this application, to recall the earlier order, today. 

4. Pursuant to order passed on 04.09.2018, the applicants claim that several buildings are sought to be demolished, and irreparable injury would be caused to them, if the said order were not recalled. 

5. On the other hand Sri Paresh Tripathi, learned Chief Standing Counsel appearing on behalf of the State of Uttarakhand, would submit that the order of the Division Bench dated 04.09.2018 required the officials to remove all encroachments, from the khasras mentioned in the order dated 04.09.2018, within a period of three months from the date of the order; the three month period stipulated in the order is to expire today; and since failure on the part of the officials to remove the encroachments would result in their having violated the said order dated 04.09.2018, and being proceeded against under the Contempt of Courts Act, they are obligated to comply with the aforesaid directions; and they have no choice but to remove the encroachments today itself. 

6. While the relief sought for in the writ petition was for a mandamus directing the respondents to evict the encroachers from the pond land in Khata No. 00675, Khasra No. 827/1, 827/4, 803, 463 of Village Sultanpur, Pargana Bazpur, District Udham Singh Nagar, as per the directions given by the Supreme Court in Jagpal Singh & Others Vs. State of Punjab and others [(2011) 11 SCC 396], the Division Bench, while passing the order dated 04.09.2018, has directed all encroachments to be removed latest by today i.e. 03.12.2018. In its order dated 04.09.2018, the Division Bench noted that the petitioner had sought directions to the respondents to evict the encroachers from the pond land in Khata No. 00675, Khasra No. 827/1, 827/4, 803, 463 situated in Village Sultanpur, Pargana Bazpur, District Udham Singh Nagar; the respondent-State had admitted that pakka structures have been constructed on pond land; and in paragraph no. 3 of the counter affidavit, it is stated that, at present, the said land is being used for the purpose of a Police Check-post; the Nagar Panchayat complex, an Inn and some shops of the Nagar Panchayat, are also situated on the said land, which is also being used for public utility purposes. The writ petition was disposed of directing the respondents to remove all encroachments from the khasras, as mentioned in paragraph no. 3 of the counter affidavit, within a period of three months from the date of the order. All the District Magistrates, throughout the State of Uttarakhand, were directed to ensure that no construction is made, on the pond land henceforth, at the peril of contempt of Court. 

7. In so far as the last part of the order dated 04.09.2018 is concerned, all the learned counsel, appearing in the matter, agree that, in the light of the law declared by the Supreme Court in Jagpal Singh & Others (supra), no construction can be permitted to be raised over pond land henceforth; and, consequently, no interference is called for. The submissions put forth by the applicants in this recall application is confined to the directions issued, in the order dated 04.09.2018, to the respondents to remove all encroachments from the said khasras within a period of three months from the date of the order. 

8. Sri T.A. Khan, learned Senior Counsel, Ms. Charanjeet Kaur, and Sri B.D. Pande, learned counsel appearing on behalf of the applicants, seeking recall of the order dated 04.09.2018, would submit that classification of the land, which was earlier under category VI(1) which relates to water bodies, has later been changed to category IV which relates to Government land other than water bodies; the land, on which these buildings have been constructed, is in khasra no. 823/7; the said land shown in the khatauni as category VI(1), which is no longer the case; and, since there is no prohibition for construction being raised on lands under category IV, the Division Bench erred in directing removal of the constructions raised over the said land. Reliance is also placed on behalf of the applicants on Section 116 (b) and (c) of the Uttar Pradesh Municipalities Act, 1916, and on Section 124 thereof, to contend that, since these lakes and water courses all vest in the Municipalities under Section 116 (b) and (c), the Municipality has the power, under Section 124, to alienate these lands; and in any event, as per the Supreme Court judgment in Jagpal Singh & Others (supra), the obligation cast on the State Government is only to prepare a scheme, wherein they are required to prescribe conditions for removal of encroachments after a notice is issued and an opportunity of being heard is afforded to all those encroachers who have been in occupation of the said land for the past several decades, some of them for a period beyond half a century ago. 

9. On the other hand Sri Pooran Singh Rawat, learned counsel appearing on behalf of the petitioner, would submit that the State Government did not have the power, in the first place, to reclassify the lands in the light of Section 132(a) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the “1950 Act”); and the contention that sub-clause (c), of Section 132 of the 1950 Act, would enable the State Government to alienate land to a local body which, in turn, is entitled to alienate these lands in favour of others, does not merit acceptance.

10. While it does appear from the khatauni of the earlier years that the subject land was, in fact, classified as category VI(1), it appears to have been reclassified later as catetory-IV. Sri B.D. Pande, learned counsel for the recall applicants, is not in a position to state as to when the classification of the land was changed. We, however, find substantial force in the submission of Sri Pooran Singh Rawat that, in the light of Section 132(a) of the 1950 Act, bhumidhari rights shall not accrue in lands covered by water or land located in the bed of a river. 

11. We find no force in the submission of Ms. Charanjeet Kaur that sub-clause (a) of Section 132 should be read as subject to sub-clause (c) of Section 132 of the 1950 Act, or that the power of the State Government to alienate land in favour of municipalities or other local bodies, would enable such local bodies to circumvent the requirement of Section 132(a) of the 1950 Act and alienate lands, covered by water bodies or lands in the bed of a river (which falls within the ambit of Section 132(a) of the 1950 Act), to others. 

12. While it does appear, on a plain reading of Section 132 of the 1950 Act, that the State Government lacks jurisdiction to alienate lands covered by water bodies, we refrain from saying anything more as these are all matters for the State Government to consider in the first instance. Suffice it to make it clear that, in case classification of land is subsequent to the 1950 Act coming into force and if, as is contended before us by Sri Pooran Singh Rawat that Section 12(a) of the 1950 Act is attracted, it would then appear that the State Government may not have been justified in reclassifying the lands which were hitherto classified as water bodies, into lands belonging to the State Government other than water bodies. The concerned official shall also examine this aspect while complying with the directions which we shall issue hereinafter. 

13. Yet another contention put forth by Sri B.D. Pande, learned counsel appearing on behalf of the applicants, is based on the provisions of the U.P. Municipalities Act, 1916, which have been adopted by the State of Uttarakhand. Section 116 thereof relates to properties vested in a municipality and, subject to any such reservation made by the State Government, all properties of the nature referred to in the said section, and situated within the municipal area, shall vest in and belong to the municipality and shall with all other property, which may become vested in the Municipality, be under their direction, management and control, that is to say, among others, all public streams, lakes, springs, tanks, wells and water-courses. The contention is that, since all water bodies including lakes and watercourses belong to the municipalities, they have the power under Section 124 of the Uttar Pradesh Municipalities Act, 1916 to alienate such property by way of sale, mortgage, lease deed etc.. This contention needs only be noted to be rejected. 

14. While it is true that, in terms of sub-clauses (b) and (c) of Section 116 of the Uttar Pradesh Municipalities Act, 1916, all public streams, lakes, springs, tanks, wells and water-courses, located within the limits of the municipalities, vest with the municipality itself, the power to alienate property, under Section 124 of the Uttar Pradesh Municipalities Act, 1916, is subject to restrictions imposed by or under the said Act. The said power would also be subject to the law in force and since the law declared by the Supreme Court is binding on all authorities under Article 141 of the Constitution of India, alienation of municipal land, covered by water bodies, contrary to the law declared by the Supreme Court, would be impermissible. 

15. That then takes us to the question as to whether the Division Bench was justified in passing the order dated 04.09.2018, which the applicants now request us to recall. As the petitioner had relied on the judgment of the Supreme Court in Jagpal Singh & Others (supra), it is necessary to take note of the directions issued therein. In Jagpal Singh & Others (supra), the Supreme Court observed: 

“……..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……” (emphasis supplied) 

16. In terms of the law declared by the Supreme Court in Jagpal Singh & Others (supra), as extracted hereinabove, the obligation cast on all State Governments is to prepare schemes for eviction of illegal/unauthorized occupants of a Gram Sabha/Gram Panchayat/Poramboke/ Shamlat land, and to be restored to the Gram Sabha/Gram Panchayat for common use of the villagers. The hypertechnical distinction sought to be drawn by Sri T.A. Khan, learned Senior Counsel, between Gram Panchayats and Municipalities and his submission that the law declared in Jagpal Singh & Others (supra) would apply only to Gram Panchayats, and not to Municipalities, does not merit acceptance. The obligation cast on the State Government, in terms of the aforesaid judgment of the Supreme Court, is to prepare a scheme for eviction of illegal/unauthorized occupants including all Gram Panchayats, (which in our view would also include other local bodies such as Municipalities etc.) for common use of the village or the people residing in the Municipality; and the scheme should provide for speedy eviction of such illegal occupants, after putting them on notice, and giving them an opportunity of a brief hearing. The Supreme Court also made it clear that the long duration of such illegal occupation or huge expenditure for making construction or political connections etc. must not be treated as a justification for regularizing the illegal possession; and regularization should only be permitted in exceptional cases where lease has been granted under some Government notification to the landless labourers or members of the Scheduled Castes/Scheduled Tribes, or where there already exists a school, dispensary or other public utility on the land. 

17. As the petitioner himself sought a mandamus only for a directions to be issued, in terms of the law declared by the Supreme Court in Jagpal Singh & Others (supra), we are of the view that the Division Bench was not justified in issuing directions, which not only run contrary to what the Supreme Court has held, but also go far beyond the relief sought for in the writ petition itself. We consider it appropriate, therefore, to recall the order passed in this writ petition dated 04.09.2018, and instead direct the Government of Uttarakhand to prepare a scheme for eviction of illegal/unauthorized occupants of municipal lands in the State, which are covered by water bodies such as lakes, ponds, streams, water-courses etc. As directed by the Supreme Court the scheme shall provide, among others, for a showcause notice to be given to the encroachers and to be provided an opportunity of a brief hearing. The State Government shall also take note of the exceptions carved out by the Supreme Court in the aforesaid judgment regarding lease granted under a Government Notification to landless labourers or members of the Scheduled Castes/Scheduled Tribes or areas where there exists a school, dispensary or other public utility on the land.

18. The scheme shall be prepared at the earliest and, in any event, not later than six months from the date of receipt of a certified copy of this order; and action shall be taken forthwith, after such scheme is formulated, to evict encroachers or unauthorized occupants from such land in accordance with the said scheme. Needless to state that, on such a scheme being prepared and notices being issued to those in possession of the land in terms of the scheme so formulated, it is open to persons in possession of such land, to whom the notices are given, to put forth all such defenses as are available to them in law including that the subject land, over which they are in possession, has not been a water body after the 1950 Act came into force. 

19. This writ petition is, accordingly, disposed of with the aforesaid observations. 

                        (R.C. Khulbe, J.)                         (Ramesh Ranganathan, C.J.) 

                           03.12.2018                                              03.12.2018

Uttarakhan High Court in Jai Prakash Maurya v. State of Uttarakhand & Ors. [Order dated 23.10.2019]

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL 

WRIT PETITION (M/S) NO. 3196 OF 2019 

Jai Prakash Maurya                                                             .........Petitioner 

Vs.

 

State of Uttarakhand and others.                                         ...Respondents 

Sri T.A. Khan, learned Senior Counsel assisted by Sri Aitya Kumar Arya, learned counsel for the petitioner. 

Sri C.S. Rawat, learned Additional Chief Standing Counsel for the State of Uttarakhand / respondent nos. 1 to 3. 

Dr. Kartikey Hari Gupta, learned counsel for respondent no. 4. 

Dated : 23rd October, 2019 

Coram: Hon'ble Ramesh Ranganathan, C.J. 

             Hon'ble Alok Kumar Verma, J.

Ramesh Ranganathan, C.J. (Oral) 

1. Heard Sri T.A. Khan, learned Senior Counsel appearing on behalf of the petitioner, Sri C.S. Rawat, learned Additional Chief Standing Counsel for the State of Uttarakhand, and Sri Kartikey Hari Gupta, learned counsel for the fourth respondent and, with their consent, the writ petition is disposed of at the stage of admission.

2. The petitioner has invoked the jurisdiction of this Court seeking a mandamus directing the respondents not to evict him from the shop in his possession, except upon initiating proceedings under the U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 (for short the '1972 Act').

3. The petitioner's case, in short, is that his predecessor was in possession of the subject land for several years; there was no pond on the subject land; a notice was issued to him, under the 1972 Act, on 01.07.1991; proceedings were initiated under Section 4 of the 1972 Act, for his eviction; the prescribed authority had, by its order dated 31.05.1993, directed eviction of the petitioner; aggrieved thereby, the petitioner had preferred Eviction Appeal No. 192 of 1993; the District Judge had, by his order dated 28.09.1996, set aside the order of the prescribed authority, granting liberty to the State to file fresh eviction proceedings; the order of the learned District Judge dated 28.09.1996 has not been subjected to challenge so far; the petitioner was sanctioned a site-plan to raise construction in 1991; and he has been paying house tax regularly.

4. It is also the petitioner's case that the third respondent had, by his order dated 30.08.2018, directed the subordinate officers and the police to have the land, pertaining to the pond, vacated in terms of the order passed by this Court in Writ Petition (PIL) No. 59 of 2016 dated 04.09.2018; on coming to know of such an order, the petitioner had filed a modification application; in the meanwhile, the said order dated 04.09.2018 was modified by a Division Bench of this Court on 03.12.2018; in the light of the said order dated 03.12.2018, the petitioner had withdrawn the modification application filed by him; in similar circumstances, a few others had filed Writ Petition (M/S) No. 1634 of 2019, which was decided on 31.05.2019; and the petitioner's case is also covered by the order passed by this Court in Writ Petition (M/S) No. 1634 of 2019.

5. The order of the Division Bench, in Writ Petition (PIL) No. 59 of 2016 dated 04.09.2018, required the respondents to remove all encroachers, from the Khasras mentioned in Para-3 of the counter affidavit filed therein, within three months; and all District Magistrates, throughout the State, were directed to ensure that no construction was made on pond land henceforth at the peril of contempt of court.

6. Recall Application No. 1467 of 2018 was filed to recall the said order dated 04.09.2018, and a Division Bench of this Court had, by its order dated 03.12.2018, followed the judgment of the Supreme Court in Jagpal Singh and others vs. State of Punjab and others: (2011) 11 SCC 396, and had directed the State Government to prepare a Scheme for eviction of illegal / unauthorized occupants of municipal lands in the State, which were covered by water bodies such as lakes, ponds, streams, water- courses etc. The Scheme was to provide, among others, for a show cause notice to the encroachers, and an opportunity of a brief hearing. The State Government was directed to take note of the exceptions carved out by the Supreme Court, in the aforesaid judgment, regarding lease granted under the Government notification to landless labourers or members of the Scheduled Castes, or areas where there exists a school, dispensary or other public utility on the land. The State Government was also directed to prepare a Scheme at the earliest and, in any event, not later than six months from the date of receipt of a certified copy of the order; and to take action forthwith, after such a Scheme is formulated, to evict encroachers or unauthorized occupants from such lands in accordance with the said Scheme. The Division Bench made it clear that, on such a Scheme being prepared and notices being issued to those in possession of the land in terms of the Scheme so formulated, it was open to persons in possession of such lands, to whom the notices were given, to put forth all such defenses as were available to them in law, including that the subject land, over which they were in possession, was not a water-body after the 1950 Act came into force.

7. As noted hereinabove, the petitioner herein had filed Modification Application No. 1567 of 2018. In the affidavit filed in support thereof, he had specifically pleaded regarding the order passed by the District Judge, under the 1972 Act, having attained finality. Without seeking an adjudication of the modification application, the petitioner chose to withdraw the same; and the modification application was accordingly dismissed as withdrawn by order dated 07.12.2018.

8. Any relief, which the petitioner is entitled to, can only be granted in accordance with the order of the Division Bench dated 03.12.2018. The petitioner claims that he is similarly circumstanced as the petitioner in Writ Petition (M/S) No. 1634 of 2019, in which this Court had passed an order on 31.05.2019. In our order, in Writ Petition (MS/) No. 1634 of 2019 dated 31.05.2019, we had recorded the submission, urged on behalf of the State Government, that any action which would be taken for removal of the encroachments would be in strict compliance with the order of the Division Bench in WPPIL No. 59 of 2016 dated 03.12.2018. We had, after recording the submission urged on behalf of the State Government that the Scheme would be formulated and action would be taken strictly in compliance with the order passed by the Division Bench of this Court in WPPIL No. 59 of 2016 dated 03.12.2018, disposed of the said writ petition.

9. All the judgments referred to hereinabove obligate the State Government to prepare a Scheme, to issue notices to encroachers in terms of the said Scheme, and after giving them an opportunity of being heard, to evict them in case they are in illegal occupation of the land belonging to a Gram Panchayat, or which forms part of a pond, lake etc.

10. Sri C.S. Rawat, learned Additional Chief Standing Counsel, states that the State Government had, by its proceedings dated 15.07.2019, directed the District Magistrates concerned to formulate Schemes within their territorial limits; such Schemes have, in fact, been formulated; in terms of the orders passed by the Division Bench, both on 03.12.2018 and 31.05.2019, show cause notices shall be issued to those in possession of the said land, enclosing thereto a copy of the Scheme; such persons shall be called upon to show cause why they should not be evicted from the subject land, as they do not fall within the exceptions carved out in the Scheme; they shall be given a reasonable opportunity of submitting their reply thereto; and, after considering their reply, a decision would be taken on whether or not such occupants are liable to be evicted.

11. Recording the aforesaid submissions of Sri C.S. Rawat, learned Additional Chief Standing Counsel for the State Government, the writ petition is disposed of. No costs. 

                (Alok Kumar Verma, J.)                         (Ramesh Ranganathan, C.J.) 

                         23.10.2019                                                 23.10.2019

Uttarakhand High Court in Govt. Officials Co-op Housing Society and Ors. v. State of Uttarakhand & Ors. [Order dated 29.10.2018]

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition No. 1883 (MS) of 2007 

Government Officials Co-op. Housing Society and others.                      ..........Petitioner. 

Versus 

State of Uttarakhand and others.                                                               ...... Respondents. 

Present: Mr. Lalit Belwal, Advocate for the petitioner. 

Mr. M.S. Bisht, Brief Holder for the State of Uttarakhand / respondents no. 1 to 3. 

Mr. R.S. Sammal, Advocate for respondent no. 4. 

Hon'ble Alok Singh, J.

1. On 18.02.1957 State of U.P. leased out plot no. 249 measuring about 20 acres in favour of petitioner society. In this land, space for park was also left out. Vide Government Order dated 22.04.2006 State Government was pleased to grant lease of this park in favour of respondent no. 4 admeasuring 1103.825 sq. mtr. Feeling aggrieved, petitioners have approached this Court.

2. Heard Mr. Lalit Belwal, Advocate for the petitioner, Mr. M.S. Bisht, Brief Holder for the State of Uttarakhand and Mr. R.S. Sammal, Advocate for respondent no. 4.

3. Mr. R.S. Sammal, Advocate for respondent no. 4 submits that respondent no. 4 is conducting cultural activities in the said lease property and is not using for its personal use; respondent no. 4 is using this property for social and charitable purposes.

4. Hon'ble Apex Court in the case of Jagpal Singh and others v. State of Punjab and others reported in (2011) 11 SCC 396, in paragraph nos. 3, 4, 15, 16, 17, 18, 19 and 20, has held as under:

"3. The protection of commons 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 vs. Paladuge Anjayya, 1972(1) SCC 521 (529) this Court observed:

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

4. What we have witnessed since Independence, however, is that in large parts of the country this common village land has been grabbed by unscrupulous persons using muscle power, money power or political clout, and in many States now there is not an inch of such land left for the common use of the people of the village, though it may exist on paper. People with power and pelf operating in villages all over India systematically encroached upon communal lands and put them to uses totally inconsistent with its original character, for personal aggrandizement at the cost of the village community.

This was done with 7 active connivance of the State authorities and local powerful vested interests and goondas. This appeal is a glaring example of this lamentable state of affairs.

.........

15. In M.I. Builders (P) Ltd. vs. Radhey Shyam Sahu, 1999(6) SCC 464 the Supreme Court ordered restoration of a park after demolition of a shopping complex constructed at the cost of over Rs. 100 crores.

16. In Friends Colony Development Committee vs. State of Orissa, 2004 (8) SCC 733 this Court held that even where the law permits compounding of unsanctioned constructions, such compounding should only be by way of an exception. In our opinion this decision will apply with even greater force in cases of encroachment of village common land. Ordinarily, compounding in such cases should only be allowed where the land has been leased to landless labourers or members of Scheduled Castes/Scheduled Tribes, or the land is actually being used for a public purpose of the village e.g. running a school for the villagers, or a dispensary for them.

17. In many states Government orders have been issued by the State Government permitting allotment of Gram Sabha land to private persons and commercial enterprises on payment of some money. In our opinion all such Government orders are illegal, and should be ignored.

18. The present is a case of land recorded as a village pond. This Court in Hinch Lal Tiwari vs. Kamala Devi, AIR 2001 SC 3215 (followed by the Madras High Court in L. Krishnan vs. State of Tamil Nadu, 2005(4) CTC 1 Madras) held that land recorded as a pond must not be allowed to be allotted to anybody for construction of a house or any allied purpose. The Court ordered the 8 respondents to vacate the land they had illegally occupied, after taking away the material of the house. We pass a similar order in this case.

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 rain water 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 are not used for the common benefit of the villagers but misappropriated by certain individuals. The time has come when these malpractices must stop."

5. As per the dictum of Hon'ble Apex Court in the case of Jagpal Singh (supra), the land reserved for the community like public pathway, park, village pond, grazing grounds, etc. etc. should not be allowed to be allotted by the State Government or the Gram Sabha for any purpose and community at large should not be deprived from using the land, which was reserved for their purposes.

6. In view of the above, writ petition succeeds and is allowed. Government Order dated 22.04.2006 passed by State Government is hereby quashed. Consequence to follow. No order as to order.

(Alok Singh, J.) 

29.10.2018