This writ petition arises out of proceedings under Section 122-B of U.P.Z.A. & L.R. Act. The first order was passed on 09.06.1997 in Case No.75 of 1994-95 by Tehsildar/ Assistant Collector First Class, Tehsil Kairana, District Muzaffarnagar, which was in favour of the petitioner. The allegation against the petitioner was that he had encroached upon Gaon Sabha Plot No.324, area 1.367 hectares, which was a pond. The encroachment was said to be since 1399 Fasli and it was alleged that after levelling the pond, the land was being cultivated by the petitioner. Petitioner claimed to be a member of Scheduled Caste and in possession since before 30.06.1985, hence entitled to the protection under Section 122-B(4-F) of the U.P.Z.A. & L.R. Act. The Tehsildar held that the plot in dispute was almost levelled and crops were being sown, hence it did not remain a pond therefore petitioner was entitled to the protection as claimed by him. Against the order passed by Tehsildar, Revision No.11 of 1997-98 was filed by Gaon Sabha Thirawa Thana Bhawan Tehsil Kairana, District Muzaffarnagar. Additional Collector, Finance and Revenue, Muzaffarnagar allowed the revision through judgment and order dated 31.08.1998 directed eviction of the petitioner and imposed damages of Rs.12712/- hence this writ petition.
Learned counsel for the petitioner has placed reliance upon copies of C.H. Form-41 and 2-ka annexed as Annexure SA-1 & SA-2 to the supplementary affidavit filed by the petitioner, which was sworn on 12.10.1998. In C.H.Form-41, Annexure SA-1 against plot in dispute under the last column the word pond is clearly mentioned. Similarly in C.H. Form 2-A which shows position of plot at the time of start of consolidation, pond is mentioned against the Plots No.499/12, 499/13 and 499/14. Thereafter, pond is shown in Plots No.500/1 to 500/5 and 501/1 to 501/18.
Moreover, Supreme Court in Hinch Lal Tiwari v. Kamala Devi AIR 2001 SC 3215 has held that no one can be permitted to occupy the pond even if it has become leveled. Rights due to possession over Gaon Sabha land cannot accrue under Section 122-B(4-F) of the Act in respect of public utility land mentioned under Section 132 of the Act including pond.
Firstly, there was absolutely no evidence to show that during consolidation nature of the land was changed. However even if it was so done, it was meaningless as legally it could not be done. Paragraphs 18, 19 and 20 of recent judgment of the Supreme Court delivered on 28.01.2011 in Civil Appeal No.1132 of 1991, Jagpal Singh and others Vs. State of Punjab and others, which is reported in 2011(2)SCALE42 are quoted below:-
"18. 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.
19. 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.
20. In Uttar Pradesh the U.P. Consolidation of Holdings Act, 1954 was widely misused to usurp Gram Sabha lands either with connivance of the Consolidation Authorities, or by forging orders purported to have been passed by Consolidation Officers in the long past so that they may not be compared with the original revenue record showing the land as Gram Sabha land, as these revenue records had been weeded out. Similar may have been the practice in other States. The time has now come to review all these orders by which the common village land has been grabbed by such fraudulent practices."
There is absolutely no error in the order dated 31.08.1998. Writ petition is dismissed. Petitioner shall at once be evicted and additional damages @ Rs.5000/- per year shall also be recovered from him for the period for which this writ petition remained pending and petitioner's dispossession remained stayed due to stay order passed in this writ petition.
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Encroachments in India have become a frequent scenario. Private builders are sold the lands of ponds,lakes,rivulets and other water bodies and are later developed into construction sites. Unfair trade of unsalable land and negligence towards environmental norms have lead to the ecological disturbance. The water table is going down. Now with the bodies like High Court who serve justice are alleged of encroaching ponds. To whom should people lay their faith upon?
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Excerpts from the judgement (http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do)