Thursday, July 28, 2011

Record of Proceedings: Jagpal Singh & Ors. versus State of Punjab & Ors. Dated-27th July 2011

ITEM NO.1
COURT NO.6
SECTION IV
 
S U P R E M E     C O U R T   O F    I N D I A
RECORD OF PROCEEDINGS
 
CIVIL APPEAL NO(s). 1132 OF 2011
 
JAGPAL SINGH & ORS.            Appellant (s)
VERSUS
 STATE OF PUNJAB & ORS.       Respondent(s)
 
 
(With appln(s) for intervention and directions and exemption from 
filing O.T. and office report)
 
Date: 27/07/2011    This Appeal was called on for hearing today.
 
CORAM :
                        HON'BLE MR. JUSTICE MARKANDEY KATJU
                        HON'BLE MR. JUSTICE CHANDRAMAULI KR. PRASAD
 
For Appellant(s)              Mr. Ujjal Singh, Adv.
                                        Mr. J.P. Singh, Adv.
                                        Mr. R.C. Kaushik, Adv.
 
For Respondent(s)
                              Mr. Prashant Bhushan, Adv.

                              Mr. G. Prakash, Adv
 
                              Ms. Hemantika Wahi, Adv
 
                              Mr. Naresh K. Sharma, Adv
 
                              Mr. K.N. Madhusoodhanan, Adv.
                              Mr. M.T. George, Adv
 
                              Ms. Sadhana Sandhu, Adv.
                              Mr. S.S. Rawat, Adv.
                              Mr. D.S. Mahra, Adv
 
                              Mr. Krishnanand Pandeya, Adv
 
                              Mr. Khwairakpam Nobin Singh, Adv
                              Mr. Sapam Biswajit Meitei, Adv.
 
                              Mr. Anil Shrivastav, Adv
                              Mr. Rituraj Biswas, Adv.
 
                              Mr. Shankar Chillarge, Addl. Govt. Adv.
                              Ms. Asha Gopalan Nair, Adv
 
                              Mr. Kamal Mohan Gupta, Adv
 
                              Mr. B.P. Singh Dhakray, Adv.
                              Mr. Shakti Singh Dhakray, Adv.
                              Dr. Kailash Chand, Adv
 
                              Mr. Avijit Roy, Adv. for
                              M/S Corporate Law Group
 
                              Mr. Ajay Choudhary, Adv
 
                              Ms. Anitha Shenoy, Adv
 
                              Mr. C.D. Singh, Adv
 
                              Mr. Ranjit Kapoor, Add. Adv. Gen.
                              Ms. Sonia Kapoor, Adv.
                              Mr. S.N. Mehrotra, Adv.
                              Mr. Kuldip Singh, Adv.
 
                              Mr. Aniruddha P. Mayee, Adv
 
                              Mr. Rajiv Nanda, Adv
 
                              Mr. Dipak Kumar Jena, Adv
 
                              Mr. Imtiaz Ahmed, Adv.
                              Mr. Milind Kumar, Adv
 
                              Mr. Shail Kr. Dwivedi, AAG
                              Mr. Gunnam Venkateswara Rao, Adv
                              Mr. Manoj Kr. Dwivedi, Adv.
                              Mr. Ashutosh Kr. Sharma, Adv.
 
                              Mr. Sanjai Parikh, Adv.
                              Mr. Pukhrambam Ramesh Kumar, Adv
                              Mr. A.N. Singh, Adv.
                              Ms. Mamta Saxena, Adv.
 
                              Mr. Abhishek Atrey, Adv
 
                              Mr. G.N.Reddy, Adv
                              Mr. C. Kannan, Adv.
            
                              Mr. Sudarshan Singh Rawat, Adv
 
                              Mr. Kunal Verma, Adv
 
                              Mr. B.Balaji, Adv
 
                              Mr. Fateh Singh Chauhan, Adv.
 
                              Ms. A. Subhashini, Adv.
 
                              Mr. R. Sundaravaradan, Sr. Adv.
                              Mr. V.G. Pragasam, Adv.
                              Mr. S.J. Aristotle, Adv.
                              Mr. Prabu Ramasubramanian, Adv.
 
                              Mr. Edward Belho, Adv.
                              Mr. P. Athuimei R. Naga, Adv.
                              Mr. Abhijit Sengupta, Adv.
                              Mr. B.P. Yadav, Adv.
 
                              Mr. F.S. Chauhan, Adv.
                              Ms. Shyam Piari, Adv.
 
                              Mr. Sunil Fernandes, Adv.
                              Ms. Astha Sharma, Adv.
 
                              Mr. Kunal Verma, Adv.
                              Mr. Ashok Kr. Singh, Adv.
 
                              Mr. Harsh Jaidka, Adv.
                              Mr. Ajay Choudhary, Adv.
 
                              Mr. Dipak Kumar Jena, Adv.
                              Ms. Minakshi Ghosh Jena, Adv.
                              Mr. Sridhar Nayak, Adv.
 
                              Mr. Pradeep Kumar, Adv.
 
UPON hearing counsel the Court made the following
 
O R D E R
 
Those States which have not filed their affidavits in pursuance of our Order 
dated January 28, 2011 may file the same.
 
Since the directions in paragraph 24 of our Order dated January 28, 2011 
amounts to suo motu Public Interest Litigation, we are of the opinion that 
this matter be placed before Hon'ble the Chief Justice of India as His Lordship 
is dealing with Public Interest Litigation matters.
 
List before a Bench presided over by Hon'ble the Chief Justice 
of India.
 
   (Rajesh Dham)                                                      (Indu Satija)
    Court Master                                                         Court Master
 

Wednesday, July 27, 2011

Govt. Responds: Rajasthan: Demarcation of any land recorded in the Revenue Records under the title of Common Land


This is a free-hand translation of the Original letter attached below:

Government of Rajasthan
 Department of Rural Development and Panchayati Raj
(Panchayati Raj)

No. F-139 (  ) Paravi/Vidhi/Charagah/11/1033             Jaipur, Dated-9-6-2011


In the compliance of the Supreme Court judgment under civil writ petition no. 1132/11 the issued orders are as follows:

1.      The demarcation of any land recorded in the revenue records under the title of common land viz. grazing lands, catchment area of the common ponds, playgrounds, lands allotted for fair, Ramlila and Circus etc. shall be completed under a special campaign till June 30.
2.      For the purpose of expansion of the settlement area, the area that has been allotted so far shall be demarcated.
3.      A part of the allotted land under settlement, shall be kept reserve of future housing demands of the weaker section’s under Poverty alleviation or National program.
4.      In 1975 and 1981 under the land allotment campaign, certain land was allotted for housing projects for labors, rural artisans, schedule castes/ schedule tribes to set apart the settlement area. While some Panchayats did not record these allotments, leading to which the revenue officers are allotting the same patch of land to other purposes resulting in the failure of the primary goal of land allotment. Hence under this campaign these allotments shall be recorded and handed over to the Panchayats.
5.      The Register of the land record under Panchayat’s Jurisdiction as given in Panchayat Raj Rule 137 shall be updated. Also the present status of the assets recorded shall be described.
6.      This register shall be read in the Gram Sabhas organized in the month of August and January.  In the meeting wherever the Gram Sabha feels necessary shall taken resolutions and send it  to the district collector along with a copy to the Tehsildar for necessary action. This will facilitate the updating of record by incorporating information pertaining to the encroachment or any other changes occurred during this period and the responsibility of the concerned shall be defined.
7.      Under Land Revenue Act article 91(6) the district collector shall issue orders in writing, entrusting the responsibility of preventing and removing the encroachment on land used for common purposes, with the Patwari, Sarpanch, Gramsevak, Tehsildar and Development officer.
8.      With the completion of procedures, the district collector shall prepare a plan of action for his/her district following the final observation.


--SD/--           
                                                                                           Chief Secretary 





Monday, July 25, 2011

News Articles: Communidades of Goa


http://articles.timesofindia.indiatimes.com/2011-02-02/goa/28367621_1_comunidades-andre-pereira-absolute-owners

Comunidades hail Supreme Court order

Times of India
TNN Feb 2, 2011, 02.36am IST
PANAJI: The Association of Componentes of Comunidades (ACC) in Goa has hailed the Supreme Court order declaring transfer of village community land for private and commercial use as illegal.
"The order is well-fitting within the scope of law. It's perfect and fits with the Code of Comunidades," says Andre Pereira of the ACC.


The Supreme Court on Monday declared transfer of village community land for private and commercial use as illegal and directed the states to take immediate steps to evict encroachers.


It directed the state governments to prepare schemes for eviction of illegal occupants of village community land and restore them back for the purpose it was originally meant for.


The scheme must provide for speedy eviction, it said. "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," said a bench comprising Justice Markandey Katju and Justice Gyan Sudha Misra. The order is applicable with retrospective effect.
Says Pereira: "No comunidade land can be given for commercial use. The government has permitted such violations in Serula comunidade, Vasco, Chicalim and many other places. It is now up to the state government to undo the wrong it has committed to the comunidades."
"The government is under contractual obligation to provide a full-fledged administrator at the cost of the comunidade. Instead, it has been deputing part-timers who obey the commands of the revenue minister or any minister rather than the comunidade he is meant to administer. This is despite comunidades being absolute owners of land. Land is not granted by the state and so comunidade villages are not revenue villages. Where there is no state grant, the state has no right - through the collector or the PDA - to determine land purpose. However, state authorities, including panchayats, municipalities, collectors and the town and country planning department, act without any powers to issue permissions of NOCs," said Pereira.
It may be recalled that the indigenous people known as 'Gaonkars', established institutions since times immemorial called 'Gaonkaria' which the Portuguese government addressed as 'Comunidades'. The Gaonkari is constituted to carry out sovereign functions such as those listed under Article 39 of the Constitution of India. They professed these functions since inception for the common and joint welfare of the society in the particular locality developed by Gaonkars at their own cost. These functions mostly consist of providing welfare measures to upkeep healthy standards of living and harmony in the society within the jurisdiction of the Gaonkari.

**********************************************************************************


'Goa needs special status under Art 244'

Times of India
TNN Feb 3, 2011, 12.55am IST

PANAJI: With the demand for special status to Goa growing from different quarters, comunidade activists and leaders in the state have said that Goa should be given special status under Article 244 of the Indian Constitution which would recognize the state's 223 comunidades as autonomous villages.
When asked if Article 371 of the Constitution would serve the objective as stated by Goa's movement for special status, advocate Andre Pereira of the Association of Components of Comunidades (ACC) said that it would not.
"Article 371 of the Constitution does not forsee existence of absolute private autonomous villages belonging to village communities. However, an amendment should be carried out to Article 244, which would enable comunidades to get protection under Schedule 6," he said.


Goa has 223 comunidades on paper, out of which, around 120 are functioning. Goa is perhaps one of the few places in India where village comunidades (communities) are absolute land owners.
The demand for special status has been growing even as an increasing influx of people from other parts of India has altered Goa's demography considerably and changed its social fabric, unique identity and culture.
Savio de Souza, is a gaonkar of Serula comunidade which comprises three-and-a-half villages Socorro, Salvador do Mundo, Penha da Franca and the Ecoxim part of the Pomburpa-Ecoxim village in Bardez. "There has been an abuse of power by politicians and interference in the administration of comunidades. Article 244 will protect the rights and identity of the natives of Goa," said de Souza .
"Also, just as people are given electoral identity cards, the natives of Goa should be given nativity cards," he added. The indigenous people of Goa known as 'Gaonkars', established institutions since times immemorial called 'Gaonkaria' which the Portuguese government addressed as 'Comunidades'.
The Gaonkari is constituted to carry out sovereign functions such as those listed under Article 39 of the Constitution of India


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http://www.navhindtimes.in/goa-news/government-systematically-destroying-communidades

‘Government is systematically destroying communidades’


MARGAO: Alleging that the government has made it impossible for the Goans to get land for housing from their own communidades while non-Goans just needed an affidavit, the standing committee of the South Goa Communidades, on Friday, demanded that the state Chief Secretary (CS) comply with the Supreme Court (SC) order of January 28 that community land encroachers be evicted and chief secretaries of all states to file a list by May 3.

"The government is systematically destroying the communidades. Recently, an amendment was made where anybody (and this was being used even by officials who were posted in Goa) could file an affidavit stating that he/she did not own a house in the state and could get a plot allocated on communidade land," Mr Joao Paul Pereira, the committee convenor, told media at a press conference held on Friday.

The committee of which three members – Mr August Monteiro and Vasco de Gama besides Mr Pereira were present for the press conference – also alleged that the Collector had authorised an official who was acting as the administrator to open an account, which could be operated singly.

The committee also criticised the circular of the Collector, Mr G P Naik stopping all payments to lawyers.
"According to the Code of the Communidades any account had to be operated by three signatories," pointed out Mr Pereira, arguing that this was in total violation of the Code and a legal notice had already been sent.
"From 1983, the government has been taking money from the communidades. But, till date the accounts have not been audited and we do not know how the money has been spent," the convenor of the standing committee, Mr Pereira told media, adding, "we had agreed to given them 10 per cent of our earnings for administrative expenses.

However, the administrator’s office has not agreed with us and they arbitrarily increase the staff salaries without even consulting us. And for the past three years, the Collector has not signed cheques for dividend payments."

Going back to encroachments, the committee charged that the administrator was not taking action against any of them, the icing on the cake was the circular sent to the communidade attorneys asking them to file FIRs against the encroachers.

"All powers lie with the administrator. And he is pushing the onus on the attorney, who has no powers," said Mr Pereira again reiterating his allegation that the government was systematically destroying the communidades.

Giving an example, he said that land was acquired at Verna at the rate of Rs 3.50 per square metre. Then after a lot of litigation it was raised to some ` 15-20 per square metre. But, this same land was being sold with a registered amount of Rs 3,500 per square metre to businessmen.




**********************************************************************************

'Comunidade land encroached upon'

Times of India
TNN Mar 27, 2011, 05.58am IST
MARGAO: The standing committee of the South Goa comunidade has urged the government to stop encroachments upon comunidade lands in the state, restore their financial powers and thereby strengthen the existence of the age-old village community bodies.
Addressing a press conference on Friday, standing committee members John Philip Pereira, Agustinho Monteiro and Vasco D'Gama pointed out that almost 90% of comunidade land in Goa have been illegally encroached upon, and accused the government of regularizing these encroachments.
Complaining about the government acquiring comunidade land, a standing committee member said, "The government acquires comunidade land at cheap rates and sells it at much higher rates. Most of the Verna comunidade land has disappeared in this manner."


Referring to a Supreme Court directive to all state governments which stated that all encroachers upon public land be evicted and the property reclaimed, the standing committee members charged the state government with failing to act upon the directives, and threatened to move the court over the matter.
The members also expressed their disapproval at the withdrawal of comunidade's financial powers by the government and vesting them in the civil administration headed by the district magistrate. They demanded that their financial powers be restored.

Saturday, July 23, 2011

In Other Courts: HIGH COURT OF ALLAHABAD - Janki Devi Vs. State Of U.P.And Ors.


eLegalix - Allahabad High Court Judgment Information System (Judgment/Order in Text Format)

HIGH COURT OF JUDICATURE AT ALLAHABAD 



AFR 
Court No. - 30 

Case :- WRIT - C No. - 29841 of 2000 

Petitioner :- Janki Devi 
Respondent :- State Of U.P.And Ors. 
Petitioner Counsel :- A.K.Srivastava,Harish Chandra Singh. 
Respondent Counsel :- C.S.C.,Km.Seema Agrawal,V.K.Singh 


Hon'ble Sibghat Ullah Khan,J. 
Heard learned counsel for the petitioner and learned counsel for contesting respondents No.3 to 8. 

Petitioner is widow of Kallu. Late Sri Kallu was real brother of respondents No.3 to 5 and of Kesho father of respondents No.6 to 8. After a long time of death of her husband, petitioner filed suit (Case No.7) for declaration and partition under Sections 229-B and 176 of U.P.Z.A. & L.R. Act against respondents No.3 to 8 before S.D.O. Karvi, District Chatrakoot. She claimed right over the share of her husband in the agricultural land in dispute and separation of the same. Property in dispute is situate in village Parsauja District Chitrakoot, Pargana and Tehsil Karvi, District Chitrakoot. Plots number are mentioned at the end of the plaint copy of which is Annexure-I to the writ petition. Total area is shown to be 7.492 hectares. Contesting respondents defendant filed objections before the S.D.O. that the suit was highly belated, hence it should be dismissed on the ground of delay alone without entering into the merits of the case. The S.D.O. decided the matter on 02.02.2000 in favour of petitioner holding that for declaration of right no limitation is provided. In the said order, it is also mentioned that earlier plaintiff petitioner had filed mutation application and appeal against the order passed therein. Against the order dated 02.02.2000 contesting respondents filed Revision No.191 of 1999-2000. Additional Commissioner, Chitrakootdham Mandal Banda allowed the revision on 27.05.2000 and set aside the order of the trial court dated 02.02.2000. The petitioner has challenged the order dated 27.05.2000 through this writ petition. 

The Additional Commissioner discussed some authorities regarding pond and held that in the said authorities, it had been held by the High Court that in respect of pond no limitation was prescribed. Thereafter the learned Additional Commissioner observed that in view of the cited authorities revision deserved to be allowed. The Court is unable to clearly understand the relation between the two. The less said about such approach the better. Possibly the Additional Commissioner meant that the land in dispute was pond and as the suit had not been filed by the Gaon Sabha hence limitation applied. In Para-14 of the counter affidavit, it has been stated as follows: 

"It is further submitted that the answering respondents has every concerned with the land in dispute which is recorded as Talab .................." 

In Para-14 of the rejoinder affidavit, it has not been denied that the land in dispute (or part thereof) is recorded as pond. 

I agree with the trial court that for seeking declaration and partition, there is no limitation still if the entire land in dispute or part thereof is pond then parties cannot seek any declaration or usurp that among themselves through partition. 

Accordingly, writ petition is allowed. Order passed by the revisional court is set aside and order passed by the S.D.O. is restored. 

However, it is directed that in case the land in dispute or part thereof is entered in the revenue records as pond then area mentioned as pond in the revenue records should at once be got vacated and handed over to the State and the Gaon Sabha which are also defendants in the suit by the S.D.O. in the suit in question itself. Supreme Court in Hinch Lal Tiwari v. Kamala Devi AIR 2001 SC 3215 has held that if some plot of land was pond at the time of Zamindari abolition in U.P. then it continues to be pond and the fact that it has become plain land or has been converted into plain land does not rob it of its character of being pond and it can not be allotted to any one and the State authorities must convert the same into the shape of a pond. The said authority has recently been followed by the Supreme Court in Civil Appeal No.1132 of 2011 Jagpal Singh Vs. State of Punjab decided on 28.01.2011. In the latter authority it has also been held that public utility land like pond etc. should be got vacated at once. Relevant sentence in para 20 of the said authority is quoted below 

"The time has now come to review all these orders by which the common village land has been grabbed by such fraudulent practices." 

It has been held in Kunti Vs. Commissioner 2009(107)R.D. 405 and Dinanath Vs. State of U.P. 2009 (1008)R.D. 321 that Collector of each district should get the public utility land in possession of unauthorised persons vacated even if earlier some consolidation or revenue authority or Court had passed the order in favour of unauthorised occupant. The authority of Dinanath has been approved by the Supreme Court through its judgment dated 29.03.2010 given in S.L.P.(Civil) C.C. 4398 of 2010. After quoting extensively from the judgment of the High Court, the Supreme Court observed as follows: 

"In a matter like the present one, the Court can not be a silent spectator and is bound to perform its constitutional duty for ensuring that the public property is not frittered by unscrupulous elements in the power corridors and acts of grabbing public land are properly enquired into and appropriate remedial action taken" 

Accordingly, it is directed that the Collector shall look into the records and in case the land in dispute is entered in the record as pond or was entered as such at the time of Zamindari Abolition i.e. 01.07.1952 then whoever is in possession either plaintiff or the contesting defendants should forthwith be evicted and the same must be handed over to the gaon sabha for being maintained/converted into pond and let out for fisheries purposes in accordance with the authorities reported in Ram Kumar Vs. State,2005(99) RD 823(FB) and Ram Kumar Vs. State, 2009(107) RD 557. The parties are directed to appear before the Collector on 07.04.2011. It is clarified that the Collector shall not decide the inter se dispute. Collector shall confine himself only to the aspect as to whether land in dispute is pond/entered as pond or not. Collector shall take decision and action irrespective of pendency of the suit in between the parties. 

If there is any land which is not entered as pond, suit in respect thereof must be decided on merit very expeditiously by the S.D.O. 

Parties are directed to appear before the S.D.O. on 18.04.2011 and the S.D.O. is directed to decide the matter very expeditiously. 

Office is directed to supply a copy of this order free of cost to Sri S.P. Mishra, learned standing counsel for immediately sending the same to Collector Chitrakoot and the S.D.O. concerned within two weeks. 

Order Date :- 22.2.2011 
NLY 





This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Deputy Registrar(Copying).



Thursday, July 21, 2011

News Article: The tragedy of the commons


The tragedy of the commons

The Times of India (Crest Edition)
Nandita Sengupta | July 16, 2011


If you were to go looking for the pond - as marked on a map - in village Rohar Jagir in Patiala, you'd be looking for a long time. There is no longer a pond in the village. Where the pond was stands a large house built by a Rohar Jagir resident, Jagpal Singh, around 2003. Singh filled the village pond with earth to make a permanent structure. But now, eight years on, his house stands on weak ground, and not only because it swallowed the village pond - the Supreme Court judged all such constructions across all states to be illegal.

Singh's is a rare case of encroachment that reached the SC earlier this year. In rejecting the village leader's appeal, the apex court's bench of Markandye Katju and Gyan Sudha Mishra swung the limelight on encroachment and sale of village commons by local panchayat honchos, politicians and babus, noting that encroachment as in Rohar Jagir is rampant across the country. So much so that many states are left with "not an inch of such land left for the common use of the people of the village, though it may exist on paper. " The SC rejected Jagpal Singh's appeal that sought to quash an earlier high court order that his house was on illegal land.

Singh is one of thousands, likely more, who encroach upon land area and water bodies that are not owned by any individual but where entire villages put their cattle to graze and drink water, and collect firewood and fodder. With little to govern the use of these areas, encroachment has been steadily increasing. Village commons make up about 15 per cent of India's total area (50 million hectares). The National Sample Survey Organisation (NSSO, 1999) estimates that the annual decrease in the amount of common lands is currently 0. 38 per cent.

In recent years, both private parties and governments have been eyeing these lands and commons. These have been diverted for bio-fuel cultivation sites, wind farms, corporate contract farming and also Special Economic Zones.

Following the Supreme Court's direction to state governments to map the commons around the country, those fighting to save these areas and water bodies from exploitative use are hopeful that, at last, the issue will be looked at seriously. As it is, commons lived under a misnomer for a long time, tagged as wastelands. "They were called wastelands during colonial times -being 'common' land that belonged to a village, they could not be taxed and hence were declared 'wasteland', " says Jagdeesh Rao of the Foundation of Ecological Securities, which helps villagers maximise the use of their commons.

It was only when the Wasteland Development Board, set up in 1985, got down to work that it was realised the areas under scrutiny for 'development' were, in the large part, not degraded land. "We realised that these areas play a huge role in sustaining a village's needs, right from inputs for farming to grazing grounds and watering holes or ponds as water source for both livestock and use at home, " says Rao, adding that food and water insecurity are sharpened in the absence of such lands.

Not that managing commons is easy. Rao knows this first hand. Popular approaches to optimising the use of such land for the benefit of villagers - whether it was about using the waterbody for fish farming or 'marketing' the produce from the grassland - were individualbased. That is, says Rao, there was no way to distribute the profit made from the commons equally. From cooperative models to the 'straight-to-market' model, efficient management practices ended up being most unfair to the most dependent.
"The more powerful villagers benefitted but it was the poorest whose dependence on the commons was the most, " says Rao.

The benefits of nurturing commons do not lie in revenue generation, and neither can their value be captured in monetary terms, says Aarthi Sridhar, co-editor of Common Voices, a newsletter on the commons initiative. "Cultural relations are poorly captured in any kind of cost benefit. Unfortunately, Indian governance relies on cost-benefit or impact assessment. For instance, within fishing communities, the identity of fisher folk is integrated with their marine space and knowledge. It is a non-negotiable, noncomputable benefit. " Plus, there are the benefits of maintaining water table levels, ecological balance and so forth.

The violation, especially of water bodies, results in unexpectedly problems. Recounting her experience of sourcing water, a village woman near Bhilwara said in a Jal Biradari session that as the small pond in her village "no longer existed" because of construction, she had to source water for her cattle from the village's hand-pump.

"She recorded that she needed to push the hand pump 20 times to collect water for each animal. She had to use the pump, she said, 400 times to have enough water for her livestock, " says Rao, adding for perspective, "In a drought situation, you can airlift fodder, how do you transport water for a village's cattle?"

Rohar Jagir's fight to reclaim their pond may well become the rallying point for villagers fighting to reclaim village land, the property that belongs to no individual.

http://www.timescrest.com/society/the-tragedy-of-the-commons-5835 

Tuesday, July 19, 2011

In Other Courts: HIGH COURT OF ALLAHABAD - Ramadhar & Others Vs Collector Jaunpur & Others

eLegalix - Allahabad High Court Judgment Information System
(Judgment/Order in Text Format)

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR
Court No. - 30
Case :- WRIT - C No. - 24612 of 1996
Petitioner :- Ramadhar & Others
Respondent :- Collector Jaunpur & Others
Petitioner Counsel :- H.S.N. Tripathi
Respondent Counsel :- C.S.C.
Hon'ble Sibghat Ullah Khan,J.
List revised. No one appears either for the petitioner or for private respondents. Learned standing counsel for the respondent nos. 1 to 3 is present.
In normal course in such a situation writ petition is to be dismissed in default on the principles of explanation inserted by C.P.C.(amendment) Act 1976 to order 41 Rule 17 C.P.C. However, in some rare cases this principle has to be ignored in exercise of writ jurisdiction particularly when petitioner is behaving in an extremely unjust manner and public property is involved.
Learned standing counsel has been heard who has also filed counter affidavit annexing therewith copies of relevant khataunis. In this case on 24.11.2010, 18.01.2011, 14.02.2011 and 28.02.2011 following orders were passed.
"24.11.2010
"Petitioner is making his claim over a pond. Almost all ponds vested in State at the time of zamindari abolition. However, in case petitioner can show that immediately after zamindari abolition his name was entered as seerdar or bhoomidhar over the pond in dispute then his case may be considered.
Accordingly, list for further arguments on 20.12.2010. On the said date copies of revenue records must be filed. Meanwhile no court whether revenue, civil or consolidation shall proceed further with any case in respect of right of the petitioner pertaining to the pond in dispute comprised in plot nos. 1365, 1375 and 1736 total area about 4.25 acres situate in village Sawayan post office Sarpatah District Jaunpur.
Office is directed to supply a copy of this order free of cost to Shri Indrasen, learned standing counsel by tomorrow.
18.01.2011
List after three weeks.
Meanwhile, rejoinder affidavit shall be filed.
14.02.2011
Two weeks and no further time for filing rejoinder affidavit is granted.
List peremptorily on 28.2.2011 showing the name of Sri A.S. Diwakar also as learned counsel for the respondent.
28.02.2011
Even though in view of earlier orders no further time is warranted to be granted to file any rejoinder affidavit, however, Sri H.S.N. Tripathi, learned counsel for the petitioner repeatedly requests for only ten days further time. Prayer is accepted. List peremptorily at the top of the list on 10.03.2011."
Gaon Sabha passed a resolution on 04.06.1996 to allot the pond in dispute to respondents 4,5 and 6 Purushottam, Mohan, Ayodhya Yadav and one Shilajit who is not party in this writ petition. The proposal was approved by Naib Tehsildar on 30.05.1996. Petitioners filed objections before the S.D.O. against the said allotment on 18.05.1996 which were registered as case no.36 Ram Adhar and others Vs. Gaon Sabha. They claimed that the pond belonged to them and they were in possession since before Zamindari Abolition and these ponds were never let out by gaon sabha for fisheries purposes hence the auction in question (dated 4.6.1996) should be cancelled. The right of the gaon sabha to auction the ponds was challenged on the ground that the ponds did not belong to the gaon sabha.
The objections were rejected through order dated 12.07.1996 passed by Deputy Collector/S.D.O. Sahahganj, District Jaunpur, which has been challenged through this writ petition. In the impugned order it is mentioned that twice chakabandi had taken place in the village in question still ponds in dispute continued to be recorded in the revenue record as pond belonging to gaon sabha and that if earlier the said ponds were not let out for fisheries purposes it did not mean that gaon sabha had no right to auction the pond for fisheries purposes.
Along with the counter affidavit filed by the State today copy of khatauni 1359 fasli and CH form 41 and 45 have been filed showing that plots in dispute were always recorded as pond belonging to gaon sabha before the S.D.O.
Petitioners claimed that they were in possession. In para 1 of the writ petition also it has been stated as follows:
"The disputed property is owned and possessed as tenancy of the petitioners from much before the date of vesting"
On abolition of Zamindari agricultural lands vested in the State and the state could direct that particular types of such land should vest in the gaon sabha as provided under Section 117 of U.P.Z.A.L.R. Act. The State has vested several types of agricultural land including tanks, ponds, private ferries, water channels, pathways and abadi sites in Gaon Sabhas vide sub section (i)(vi) of Section 117 of the Act. Three question answers have been filed as Annexure 1,2, and 3 to the writ petition and it has been stated in the writ petition that the said question answers proved that objections of the petitioners were pending before consolidation authorities. Consolidation authorities have got no right to gift the gaon sabha properties to private persons in the form of declaring the right of that private person over the said land of gaon sabha.
It has been held in Kunti Vs. Commissioner 2009(107)R.D. 405 and Dinanath Vs. State of U.P. 2009 (108)R.D. 321 that Collector of each district should get the public utility land in possession of unauthorised persons vacated even if earlier some consolidation or revenue authority or Court had passed the order in favour of unauthorised occupant. The authority of Dinanath has been approved by the Supreme Court through its judgment dated 29.03.2010 given in S.L.P.(Civil) C.C. 4398 of 2010. After quoting extensively from the judgment of the High Court, the Supreme Court observed as follows:
"In a matter like the present one, the Court can not be a silent spectator and is bound to perform its constitutional duty for ensuring that the public property is not frittered by unscrupulous elements in the power corridors and acts of grabbing public land are properly enquired into and appropriate remedial action taken"
Supreme Court in Hinch Lal Tiwari v. Kamala Devi AIR 2001 SC 3215 has held that if some plot of land was pond at the time of Zamindari abolition in U.P. then it continues to be pond and the fact that it has become plain land or has been converted into plain land does not rob it of its character of being pond and it can not be allotted to any one for agricultural or residential/commercial purpose and the State authorities must convert the same into the shape of a pond. The said authority has recently been followed by the Supreme Court in Civil Appeal No.1132 of 2011 Jagpal Singh Vs. State of Punjab decided on 28.01.2011. In the latter authority it has also been held that public utility land like pond etc. should be got vacated at once. Para 20 of the said authority is quoted below
" 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."
The case of Kunti (supra) was decided by me and the said case was directed against order rejecting transfer application. However, as question of pond was involved hence I issued direction for vacation of the pond at once. The Supreme Court while approving my judgment through its judgment dated 29.03.2010 fully approved the said approach and observed as follows before quoting extensively the portion of the High Court judgment which was challenged.
"The learned Single Judge could see through the game of Ramroop and like and dismissed the writ petition by recording the following reasons."
Accordingly, the writ petition is absolutely devoid of any merit hence it is dismissed. It is further directed that as petitioners are admittedly in possession and as through interim order dated 02.08.1996 it was directed that "until further orders parties shall maintain status quo." hence since 1996 till 2010 petitioners shall be liable to pay the damages for unauthorised occupation @ 5000/- per acre per year. Petitioners shall be evicted forthwith and ponds in dispute shall at once be let out for fisheries purposes in the light of the judgments of this court reported in Ram Kumar Vs. State,2005(99) RD 823(FB) and Ram Kumar Vs. State, 2009(107) RD 557.
The ponds shall be settled through auction after due advertisement in daily Hindi Newspaper Dainik Jagaran or Amar Ujala published from the place nearest from the village in question. Name of the village in which pond is situate number of plot/pond and its area must clearly be mentioned in the advertisement which must appear in the News paper about two weeks before the date fixed for auction. Absolutely, no laxity in compliance of this order will be appreciated by this Court.
Writ petition is accordingly dismissed with the above directions.
Office is directed to supply a copy of this order free of cost to Sri Indresen, learned standing counsel within a week for immediately sending the same to the S.D.O. Sahahganj, District Jaunpur and Collector Jaunpur. Both these authorities shall send compliance report regarding eviction of the petitioners realisation of dues from them and auction of the ponds for fisheries purposes.
List peremptorily for perusal of compliance report before me on 06.07.2011 at the top of the list.
Order Date :- 10.3.2011
vkg
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