Court No. - 6
Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 3166 of 2018 Petitioner :- Vishwani Mishra @ Gaurav Mishra Respondent :- State Of Up And 5 Others Counsel for Petitioner :- Sanjay Mishra Counsel for Respondent :- C.S.C.,Brij Kumar Yadav
Hon'ble B. Amit Sthalekar,J.
Heard Sri Sanjay Mishra, learned counsel for the petitioner, Sri Brij Kumar Yadav, learned counsel for the respondent no.4 and Sri Dhirendra Singh brief holder on behalf of respondents no.1 to 3.
The petitioner in the writ petition is seeking a direction to the respondents to remove the illegal encroachment from Gata No.778, area 0.0690 hectare situated in village Nagala Gange, Mauja Bachhroi, Pargana-Bharthana, Tehsil-Takha, District Etawah, which according to him is recorded as Pond in the revenue records. The relevant extract of the khatauni has been filed as Annexure-2 to the writ petition.
Reliance has been placed on a Division Bench judgment of this Court in Public Interest Litigation Petition No.63380 of 2012 (Prem Singh Vs. State of U.P. and Others) wherein the Division Bench has directed that if the complaints regarding unauthorised occupation over the public ponds or other similar public lands are received by the District Magistrate of a District, he should take all the required actions in view of the law already settled by the Supreme Court in the case of Jagpal Singh and Others Vs. State of Punjab and Others reported in (2011) 11 SCC 396. Paragraphs 13, 15, 16, 18, 23 and 24 of Jagpal Singh (supra) read as under:
"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. 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.
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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.
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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 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.
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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/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.
24. Let a copy of this order be sent to all Chief Secretaries of all States and Union Territories in India who will ensure strict and prompt compliance of this order and submit compliance reports to this Court from time to time."
In order to ensure that the work is going on sincerely and as per the project, list this case on 02.05.2018 by which date the respondent no.3, Tehsildar, Tehsil Tikha, District Etawah shall file an affidavit with photographic evidence to show how far the work has progressed and this case shall thereafter be listed after every one month till the Pond in question is restored to its original form and the respondent no.3 shall file an affidavit every time with photographic evidence to show the extent of progress of the work indicating the depth of the pond as well as the width of its border and how it will be connected with a source of water, as per order of this Court dated 13.3.2018 passed in PIL No. 53946 of 2017 (Ramlakhan Vs. State of U.P. and others).
Order Date :- 29.3.2018 N Tiwari