JUDGMENT R.B. Misra, J.
1. Heard Sri R. C. Chaturvedi, learned counsel holding brief of Sri K.S. Kushwaha learned counsel for the petitioner, and Sri Sandeep Mukherjee, learned standing counsel for the State respondents, None appears for the Gaon Sabha of village Udaipur through the Land Management Committee of Village Udaipur, Pargana and Tehsil Chail, district Allahabad.
2. In the petition the orders dated 24.6.1987 (Annexure-2 to the writ petition) and 30.6.1988 (Annexure-3 to the writ petition) passed by the Tehsildar, Chail, district Allahabad and Additional Collector, Allahabad respectively are under challenge, whereby both the authorities concurrently by their impugned orders on the basis of the fact finding that the land in possession of the petitioners is Talab/big water pond, which is in unauthorised possession of the petitioner, therefore, the petitioner was to be evicted from the land in question treating it as unauthorised possession.
3. According to the petitioner he is owner of the land in question by virtue of Section 122B (4F) of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter in short called as the U.P.Z.A. and L.R. Act).
4. It appears that on 1.1.1987 a notice in Z. A. Form 49 Ka in reference to Rule 115D of U.P.Z.A. and L.R. Rules, 1952 was served to the petitioner indicating that the land in question bearing arazi No. 93 measuring area 1 bigha 9 biswa situated in village Udaipur, Pargana and Tehsil Chail, District Allahabad is recorded as Talab, over which he has made his unauthorised occupation. After obtaining the reply/objection of the petitioner that he is a Harijan (Pasi) by caste and is landless and the said land is in his possession for the last 49 years and this talab is producing crops, therefore, he is deemed to be owner of talab, however, the Tehsildar finding the said land of arazi No. 93 areas 1-9-0 as talab and in unauthorised possession of the petitioner passed an order of dispossession of the petitioner from the said land. Revision No. 638 of 1987-88 under Section 122B (4A) of the U. P. Z. A. and L. R. Act was filed by the petitioner against the above order of the Tehsildar dated 24.6.1987 reiterating the same stand, which was taken by the petitioner before the Tehsildar. The Additional Collector Allahabad, after perusing the revenue records, pleadings of the parties and material available on record before him has arrived at a finding that the land in question is of nature of Talab/big water pond and the petitioner is in unauthorised possession thereon for the last two years only, which is on the basis of the revenue records and entries made therein. According to Additional Collector, Allahabad in Intakhab Khataunt 1388 to 1393 Fasali the land in question is recorded as Talab and the petitioner, as such, is not to be given benefit of Section 122B (4F) of the U. P. Z. A. and L. R. Act as the petitioner being a landless and a Harijan (Pasi) by caste cannot be given benefit of such land recorded as Talab by virtue of the restrictions available under Section 132 of U. P. Z. A. and L. R. Act.
5. It would be useful to refer the provisions of the U. P. Zamindari Abolition and Land Reforms Act, 1950. Under Section 4 of the U. P. Z. A. and L. R. Act, all estates shall vest in the State from the specified date. Section 117 of the U. P. Z. A. and L. R. Act deals with vesting of certain lands in a Gaon Sabha. Clause (vi) of the said section which is relevant for our purpose reads thus :
"117. Vesting of certain lands, etc. in Gaon Sabhas and other local authorities.--(1) At any time after the publication of the notification referred to in Section 4 the State Government may, by general or special order to be published in the manner prescribed, declare that as from a date to be specified in this behalf, all or any of the following things, namely ;
(i) to (v)
(vi) tanks, ponds, private ferries, water channels, pathways and abadi sites,--
which had vested in the State under this Act shall vest in a Gaon Sabha or any other local authority established for the whole or part of the village in which the said things are situate, or partly in one such local authority (including a Gaon Sabha) and partly in another :
Provided that it shall be lawful for the State Government to make the declaration aforesaid subject to such exceptions and conditions as may be specified in such order."
6. A perusal of the provision extracted above makes it clear that tanks, ponds, private ferries, water channels, pathways and abadi sites which had vested in the State under Section 4 of the Act shall vest in the Gaon Sabha or any other local authority established for the whole or any part of the village in which the said things are situate, or partly in one such local authority and partly in another, from the date specified in the notification issued by the Government in this behalf. Section 122C authorises the Assistant Collector, in charge of the sub-division to earmark the classes of land noted hereunder either on his own motion or on the resolution of the Land Management Committee, for the member of the Scheduled Castes and the Scheduled Tribes and agricultural labourers and village artisans. It would be apt to refer to Clause (a) of Sub-section (1) of Section 122C, which reads as follows :
"122C. Allotment of land for housing site for members of Scheduled Castes, agricultural labourers etc,--(1) The Assistant Collector in charge of the subdivision of his own motion or on the resolution of the Land Management Committee, may earmark any of the following classes of land for the provision of abadi sites for the members of the Scheduled Castes and the Scheduled Tribes and agricultural labourers and village artisans :
(a) lands referred to in Clause (1) of Sub-section (1) of Section 117 and vested in the Gaon Sabha under that section ;"
And the said Clause (i) runs as follows :
"117. (1) (i) lands, whether cultivable or otherwise, except lands for the time being comprised in any holding or grove.
*** *** **"
7. The term "land" is defined in Section 3, Sub-section (14) to mean land held or occupied for purposes connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming. The definition excludes land dealt with in Sections 109, 143, 144 and Chapter 7. We may note that we are not concerned with the excepted categories. From a combined reading of the provisions aforementioned, it is plain that the subject matter of allotment of house sites is lands referred to in Clause (i) of Sub-section (1) and not tanks, ponds, private ferries, water channels, pathways referred to in Clause (vi) of Sub-section (1) of Section 117 of the Act. It appears to me that due to inappropriate drafting the expression "and abadi sites" is wrongly placed in Clause (vi).
8. For convenience the provisions of Section 122B (4F) and Section 132 of U. P. Z. A. and L. R. Act are also reproduced as below :
"122B (4F). Notwithstanding anything in the foreging subsections, where any agricultural labourer belonging to a Scheduled Caste or Scheduled Tribe is in occupation of any land vested in a Gaon Sabha under Section 117 (not being land mentioned in Section 132) having occupied it from before June 30, 1985 and the land so occupied together with land, if any, held by him from before the said date as bhumidhar, sirdar or asami, does not exceed 1.26 hectares (3.125 acres), then no action under this section shall be taken by the Land Management Committee or the Collector against such labourer, and it shall be deemed that he has been admitted as bhumidhar with non-transferable rights of that land under Section 195."
"132. Land in which bhumidhari rights shall not accrue.--Notwithstanding anything contained in Section 131, but without prejudice to the provisions of Section 19, bhumidhari rights shall not accrue in :
(a) pasture lands or lands covered by water and used for the purpose of growing singhara or other produce or land in the bed of a river and used for casual or occasional cultivation ;
(b) such tracts of shifting or unstable cultivation as the State Government may specify by notification in the Gazette ; and
(c) lands declared by the State Government by notification in the Official Gazette, to be intended or set apart for taungya plantation or grove lands of a Gaon Sabha or a local authority or land acquired or held for a public purpose and in particular and without prejudice to the generality of this clause :
(i) lands set apart for military encamping grounds ;
(ii) lands included within railway or canal boundaries ;
(iii) lands situate within the limits of any cantonment ;
(iv) lands included in sullage farms or trenching grounds belonging as such to a local authority ;
(v) lands acquired by a town improvement trust in accordance with a scheme sanctioned under Section 42 of the U. P. Town improvement Act, 1919 (U. P. Act No. VII of 1919) or by a municipality for a purpose mentioned in Clause (a) or Clause (c) of Section 8 of the U. P. Municipalities Act, 1916 (U. P. Act No. VII of 1916). and
(vi) lands set apart for public purposes under the U. P. Consolidation of Holdings Act, 1953 (U. P. Act V of 1954)."
9. The Supreme Court in Hinch Lal Tiwari v. Kamala Devi and Ors., 2001 (3) AWC 2398 (SC) ; (2001) 6 SCC 496. has observed as below :
"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., respondent Nos. 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."
10. I have heard learned counsels for the parties, I find that undisputedly the land bearing arazi No. 93 measuring area 1 bigha 9 biswa is Talab/big water pond and the petitioner is in unauthorised occupation of the land in question from the date when the order of Tehsildar dated 24.6.1987 was passed and the petitioner being a landless Harijan (Pasi) cannot be given benefit of Section 122B (4F) of the U. P. Z. A. and L. R. Act as the said land is in the nature of Talab' and land covered by water cannot be allowed to be given in the bhumidhari right to the petitioner. The fact finding concurrently arrived at by both the authorities below could not be interfered with and upset in the writ jurisdiction. In these circumstances, this Court is not inclined to invoke its extraordinary discretionary jurisdiction under Article 226 of the Constitution of India, therefore, writ petition is dismissed. The respondents are directed to immediately dispossess the petitioner from the said land of 'Talab' of Gaon Sabha, if necessary, police protection may be given.
11. It is observed that since centuries the 'Talabs' being potential source of water for different use of habitats, human being, animals, catties, plants and for irrigation purposes and from centuries these were acknowledged as one of the essential component of water resources in old traditional Indian heritage. These 'talabs' were utilised for worship, ritual ceremonies, bathing, amusement known as 'swimming pool', in ancient time and their erection and maintenance was treated as most pious and noble work in the past, however, because of casual approach of Gaon Sabha and misdeeds of undesired persons, these talabs are extinguishing. The time has come when the talabs/big water ponds in the villages and rural areas are to be made free from encroachments and for this purpose a collective endeavourance has to be made on the part of all the concerned including Gaon Sabha at the district level as well as the State level, so that, these 'talabs' are to be made free from the unauthorised possession. If unauthorised possession are perpetuated in the garb of some orders of the Court, efforts could be made for vacation of such orders by placing proper facts before the Courts and such cases are to be persuaded with care and caution for and on behalf of Gaon Sabha, so that, these 'talabs', wheresoever these are situated may in the village, town or anywhere in the State, be made free from the illegal encroachments and illegal possession of the undesired persons. For this purpose this order has to be conveyed to the Chief Secretary, Government of U. P., Lucknow so that, appropriate directions may be issued to all the district administrations giving direction to all the 'Gram Pradhans' and Land Management Committees for making sincere efforts for evicting the unauthorised persons' possession and for protection of 'talabs' in this country as valuable water resource.
12. Copy of this order be given free of cost to Sri M.C. Chaturvedi, learned Additional Chief Standing Counsel/Sri Sandeep Mukherjee, learned standing counsel, who will convey the concerned District Administration along with the communication to the Chief Secretary, Government of U. P., Lucknow, and to the Secretary of the relevant departments, so that the same may in turn could be conveyed to the Commissioners of all the Divisions, District Magistrates of U. P., by way of circulars and directions for necessary action.
13. The registry of this Court shall also inform to the Chief Secretary separately.