Encroachment case of a village pond in Rohar Jagir, Tehsil, in the State of Punjab:-CASE STUDY 3

In the January 28 decision, the Court held that the enclosure of a village pond in Rohar Jagir, Tehsil, in the State of Punjab, by real estate developers was a totally illegal occupation of the commons.  The developers, who were appealing a lower court ruling, had filled in the pond with soil and started building houses on it.  The Court ruled in unmistakable terms that the pond/land must revert to the commoners immediately and the illegal occupiers must be evicted.  Even more remarkable, the Court held that similar enclosures of common lands elsewhere in India must be reversed even if they have been in effect for years.

The Indian Supreme Court started by recognizing the ancient history of the commons in India and its vital importance:

"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 the 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 graveyard, 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 doubts some exceptions to this rule which permitted the Gram Sabha/Gram Panchayat to lease out some of this land to landless laborers, and members of the scheduled castes/tribes, but this was only to be done in exceptional cases".

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. 

Later in the ruling, as if to emphasize the crime of enclosure, the Court revisits the timeless importance of the commons and the morally offensive, ecologically harmful results of the enclosure:

"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."

In the end, the Indian Supreme Court struck down the enclosed appeal with a clear declaration that the commons must revert to the commoners:

"We find no merit in this appeal.  The appellants herein were trespassers who illegally encroached on to the Gram Panchayat land by using muscle power/money power and in collusion with the officials and even with the Gram Panchayat.  We are of the opinion that such kind of blatant illegalities must not be condoned.  Even if the appellants have built houses on the land in question they must be ordered to remove their constructions, and possession of the land in question must be handed back to the Gram Panchayat.  Regularizing such illegalities must not be permitted because it is Gram Sabha land which must be kept for the common use of villagers of the village. We cannot allow the common interest of the villagers to suffer merely because the authorized occupation has subsisted for many years"

In the cases where the rich have built homes on those lands, it may be very difficult as a practical matter to evict them at this point, notwithstanding the Court’s statement, “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.”

What are we looking for:

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? 

At this point we are researching on the on going case and trying to gather available information through different mediums. We are contacting concerned nodal agencies for the details on the acquired HC land and also citing relevant cases of pond encroachments and their outcomes.  

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Excerpts from civil appellate jurisdiction(https://indiankanoon.org/doc/1692607/)

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