Hon'ble Devendra Kumar Upadhyaya, J.
This petition initially was filed by seven petitioners, out of whom Ashok Diwakar, petitioner no. 1 and Smt. Anita Shukla, petitioner no. 5 expired during pendency of the writ petition and their names have been deleted.
At the outset it would be pertinent to mention that this petition though has been filed in individual capacity, raising a grievance regarding allotment of a piece of land in favour of Nav Chetna Public School, but there is nothing on record nor the counsel for the petitioners could substantiate any action which could have given cause of action to the petitioners to be aggrieved by the said allotment, in their individual capacity.
We have, however, proceeded to consider the case on the basis of the pleadings in the writ petition and the pleas as urged by the parties' counsel.
Sri Shailendra Singh Chauhan representing the petitioners, vehemently urged that Khasra Plot No. 406 situate in Indira Nagar, Lucknow was, in fact, recorded as Talaab prior to the date of vesting and, therefore, this land could not have been allotted in the name of the school by Awas Evam Vikas Parishad and rather, same should be restored in the shape of Talaab (pond) in view of the dictum of the apex court in the case of Hinch Lal Tiwari v. Kamala Devi and others, (2001) 6 SCC 496.
Sri K.S. Pawar, appearing for Awas Evam Vikas Parishad, has strongly disputed the claim of the petitioners and has submitted that the land in question was legally and properly allotted to the school but because of successive litigations being brought to the Court by the petitioners and other residents of the locality, the school could not be constructed though allotment was made in the year 1998 and the respondent no. 5 had also deposited the substantial amount. However, it appears that certain formalities could not be completed for the reason of litigations coming in between.
Sri Mahesh Chandra appearing for respondent no. 5 submits that successive petitions filed by one person or the other, have caused immense loss to the allottee and that the plea of the petitioners that land in question is a Talaab is not correct.
He further submits that even assuming that it was recorded as a Talaab before the date of vesting, yet it is a fact that the Talaab was no more available and there is no water which could be used or which could be termed as water reservoir and the land was allotted because it had lost the character of Talaab and, therefore, it cannot be said that any illegality has been committing in alloting the said land in favour of the school.
His further submission is that the case of Hinch Lal Tiwari does not say that where developments have taken place and pond has lost its character and utility, simply because of entry as Talaab in revenue records, all the developments cannot be ruined for restoring the land as Talaab again.
The record reveals that prior to the filing of the present petition, successive writ petitions were filed. Writ Petition No. 3363 (MB) of 1998 was filed by Jai Prakash Narain Tripathi, who was the Chairman of Jan Kalyan Awasiya Samiti. This writ petition was disposed of with a direction to the Housing Commissioner to decide the representation, which was decided and rejected on 5.7.2000. Being aggrieved by rejection of the representation, Jan Kalyan Awasiya Samiti and Jai Prakash Narain Tripathi who was the President of the Samiti, filed Writ Petition No. 3828 (MB) of 2000.
In the earlier writ petition and the present one, as well, a specific plea was taken that the land in question was an open space/park, which could not be let out or allotted for the purpose of school. The said writ petition, namely, Writ Petition No. 3828 (MB) 2000 was dismissed by a Division Bench, of which one of us (Pradeep Kant, J.) was a member on 21.9.05. The Division Bench came to the conclusion that at no point of time the said land was recorded as open place/park, as in all lay out plans of the Parishad, the said land has been shown as the land earmarked for school.
Not being satisfied with the dismissal of the aforesaid writ petition, another writ petition, being Writ Petition No. 7038 (MB) of 2005 was filed by one O.P. Mishra and some of the present writ petitioners. In this writ petition, a plea was raised that the plot in question was recorded as pond in Khatauni and was to be preserved as park but it has illegally been allotted to the school. This writ petition was disposed of vide order dated 11.11.05, with a direction that the representation of the petitioners be decided by the Housing Commissioner. The Housing Commissioner, however, did not find any force in the plea and rejected the representation. This order was passed on 25.3.06.
Being aggrieved by the aforesaid order dated 25.3.06, the present writ petition has been filed.
The series of litigations mentioned above, do indicate that the land in question was allotted to the school on 4.7.98 and in response to which, the school had deposited the requisite amount as per rules but further progress could not be made. The boundary wall has been constructed as per the directions of this Court in this petition itself.
The challenge initially was made by a person or group of persons, namely, the Society, to the allotment, taking a specific plea that the land in question was earmarked as an open space/park and, therefore, it cannot be allotted to the school. This plea was rejected as it could not be substantiated before the Court that the land was ever earmarked as open space or park. The master plan was also looked into and the lay out plan was also produced before the Court, as is evident from the judgement and order passed in Writ Petition No. 3828 (MB) of 2009.
The plea of open space/park having failed, a new challenge was made by filing Writ Petition No. 7038 (MB) of 2005, raising a plea that the aforesaid plot was recorded as pond in the Khatauni and, therefore, it could not have been allotted to the school.
In regard to the aforesaid plea regarding land being recorded as pond, counsel for the petitioners heavily relied upon the counter affidavit and supplementary affidavit filed by Sri Mahendra Singh, the then Sub Divisional Magistrate, Lucknow. This counter affidavit/supplementary affidavit was filed in pursuance of the directions issued by the High Court on impleadment of the Collector, Lucknow.
The counter affidavit filed by the Sub Divisional Magistrate does not say anywhere that Khasra Plot No. 406 was ever recorded as Talaab (pond) in the Khatauni prior to the date of vesting or thereafter. What has been stated is that, as per the entry in the Nakal Khatauni of 1356 Fasli, the said Khasra Plot No. 406 measuring 3 bigha 17 biswa, had been recorded in Ziman-5 category to be used by the Asamis for cultivation of Singhara, a crop cultivated in water bodies. The said Khasra is recorded in the name of Bhusan son of Garibe Kahar in Khata Khatauni No. 98. In the year 1359 Fasli, the name of Naumi Lal son of Thakur Deen alongwith Bhusan Kahar finds place in Khata Khatauni No. 88.
He has concluded that the aforesaid Khasra fell under Mohal Umrao Singh and the tenure holder was using the same for Singhara cultivation etc. The entry in the Khasra for the year 1359 Fasli in relation to Khasra Plot No.. 406 also reveals the area of the said Khasra as 3 bigha 17 biswa out of which 2 bigha land had been recorded as Tal Majarua. However, in column 19 of the said Khasra, the entire area is recorded as Talaab.
In the supplementary affidavit filed by the same officer, a site plan and also a survey report have been given, from where it is established that over plot no. 406, thirty four houses have been constructed and people are living therein, including some of the petitioners, as informed by parties' counsel and that one bigha of land which has been allotted to the school also forms part of the same very Khasra Plot No. 406.
Though we are satisfied that in case revenue entry of pond in respect of certain land is recoded, may be since before the date of vesting or thereafter but since the pond has lost its utility and was no more in use as a pond and land so covered or pond so covered has been used for some public purposes or some good cause, namely, for development, it would not give a right to any party to remove all the developments and restore the pond, which, in fact, was no more in existence but even then for considering the plea of the petitioners, we have proceeded to examine the case, as if the said land was recorded as pond before the date of vesting.
In Hinch Lal Tiwari (supra) the apex court while holding that if a pond (talaab) has fallen into disuse because of drying up but some portion is covered by water in rainy season, then no part of it can be allotted to anyone as abadi site for purposes of building houses in paragraph 13, made an observation that 'it is important to note that material resources of the community like forests, tanks, ponds, hillocks, mountain etc. are nature's bounty. they maintain delicate ecological balance. They need to be protected for a proper and health environment which enable people to enjoy a quality life which is essence of the guaranteed right under Articles 21 of the Constitution. The government, including 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 public at large. Such vigil is the best protection against knavish attempt to seek allotment in non abadi sites'.
A plain reading of the aforesaid observation would reveal that reference has been drawn to the ponds and tanks which are community tanks or which vests in Gaon Sabha. If the tenure holder is using the land for Singhara cultivation, the land still would be cultivatory land and would not be given the shape and colour of pond, as mentioned therein.
The counter affidavit filed by Sub Divisional Magistrate mentions that the land was recorded in the name of private individuals as Asami and they were cultivating Singhara therein. If the pond is a community pond, it has to be recorded in the name of Gaon Sabha. The entry of an individual i.e. Naumi Lal as tenure holder of the said land defeats the very plea of the petitioners that the land in question was a pond before the date of vesting and, therefore, the same could not have been allotted or converted to any other use.
It was open for the tenure holder to stop cultivating Singhara and do any other activity over the said land as a tenure holder, which was permissible under the Act.
Counsel for the petitioners could not be able to place before this Court any provision of law which puts a bar or restricts with respect to the use of the land by a tenure holder of his own land.
While making these observations, we do not intend to delve upon the rights of Asamis but we are of the view that unless the pond vests with Gaon Sabha i.e. it is a community pond, the plea raised by the petitioners cannot be accepted.
We would further like to observe that in a fast changing world, where development is necessary and industrial growth is taking place, sustainable development has to take place and cannot be overlooked.
In the case of Hinch Lal Tiwari (supra), their Lordships made an observation that the land which has the character of a pond but due to passage of time some portion of it has dried up and rest of the portion is covered with water, cannot be allotted to anybody for construction of house building or any allied purposes.
Of course, the land which requires restoration of water reservoir for the purpose of community use cannot be allowed for undertaking any other activity but uprooting the existing developed colonies or houses built thereon at a time when the pond was not in use and rather had fallen into disuse because of drying up cannot be the intention of law.
Here in the instant case, apart from the fact that one bigha land has been allotted to the school and over rest of the land thirty four residential houses stand and all allotments have been made by Awas Evam Vikas Parishad and some of them belong to some of the petitioners in the present petition, in case we issue a direction for restoration of the pond as pleaded by the petitioners, over plot no. 406, it would mean demolition of all thirty four houses. This Court cannot be selective in passing orders, if the said plea is applicable to all similarly situated persons.
So far the school is concerned, the land has been allotted to it. It is for the Awas Evam Vikas Parishad to proceed and finalise the matter, if it has not yet been finalised.
Thus, the allotment cannot be questioned on the ground that the land in question was recorded as pond, at some point of time.
In view of the above, the petition has no force, which is hereby dismissed.
Dated: 29.11.2011 MFA