(Judgment reserved on 23.02.2011)
(Judgment delivered on 09.05.2011)
Case :- WRIT - B No. - 38953 of 1999
Petitioner :- Smt. Shyama Devi
Respondent :- D.D.C. & Others
Petitioner Counsel :- S.K. Singh,Rajesh Kr. Singh,V.K. Singh
Respondent Counsel :- C.S.C.,H.S.N. Tripathi,P.S. Tripathi
Case :- WRIT - C No. - 51694 of 2005
Petitioner :- Lal Bahadur
Respondent :- State Of U.P. & Others
Petitioner Counsel :- Pradeep Kumar
Respondent Counsel :- C.S.C.,H.S.N. Tripathi,O.P. Gupta,P.S. Tripathi,V.K. Singh
Hon'ble Sibghat Ullah Khan,J.
Heard learned counsel for the parties.
In consolidation proceedings a compromise was filed by the parties on 09.08.1972 and matter was promptly decided on the basis of compromise by C.O. However, in the year 1989, i.e. after 17 years 5 more plots i.e. plot nos. 1421, 1446, 1448, 1286 and 1356 were sought to be added in the compromise and the order passed on the compromise. The needful was done by the Consolidation Officer through order dated 19.12.1989. The said order was set aside by the impugned orders passed by S.O.C. and D.D.C. and it was held that the said 5 plots were not included even in the objections under Section 9 of the U.P.C.H. Act. The said order was modified by S.O.C. to the extent that above 5 plots were deleted from the same. Against the order passed by S.O.C. Annexure 3 to the writ petition, two revisions were filed being revision no.815/702 by Shyama Devi (petitioner) and revision no.848/720 by Smt. Gaura Devi, respondent no.7 and others. D.D.C. Allahbad, through order dated 14.06.1999 dismissed both the revisions.
If the above plots were not in dispute and not included in the initial objection, they could not be subject matter of compromise. Accordingly, there is no error in the orders challenged through the first writ petition which is accordingly dismissed.
As far as second writ petition is concerned it is confined only to plot no.1286 which is one of the above five plots, new number of which is 732 and area is 7 bigha 15 biswas (1.198 hectare). It is situate in village Masadhi pargna Mah Tehsil Handia, District Allahabad. In the said writ petition it has been stated that the said plot is pond and belongs to gaon sabha. Petitioner claims to be a member of gram panchayat Masadhi. It has been stated that the plot in question in the said writ petition is entered as pond since 1333 fasli (Annexure II & III). Khasra of 1359 fasli has also been filed as Annexure no.1 in which also it is mentioned as pond. Annexure 7 to the second writ petition is a report by Tehsildar Handia Allahabad dated 27.08.2004 which has been approved by S.D.M. on 4.11.2004. In the said report it is mentioned that there was some order directing entry of name of Raghvendra Pratap Singh and Yadvendra Pratap Singh respondents in the second writ petition and proforma respondents in the first writ petition. In the report it is mentioned that in the copy of judgment passed by S.O.C. in appeal on 06.09.1996 there is mention of order directing entry of name of both these persons. It is further mentioned that matter was sub judice in the High Court in the form of writ petition However, it is not mentioned that through the said judgment S.O.C. had set aside the order of entry of the 5 plots including plot no. 1286(old)732 (new). The order dated 06.09.1996 has been challenged through the first writ petition.
Annexure 6 to the second writ petition is a report by Assistant Registrar Kanoongo showing that there is lot of manipulation in Khatauni in respect of entry dated 26.05.1966; case number has been scored off and no date of decision has been mentioned. This proves that contesting respondents of the second writ petition manipulated in the records. Even if it is assumed that some order was passed in respect of a pond in favour of private person it was utterly illegal. No one can acquire any right over pond even if it has become levelled vide Hinch Lal Tiwari v. Kamala Devi AIR 2001 SC 3215 and Civil Appeal No.1132 of 2011 Jagpal Singh Vs. State of Punjab which is reported in 2011(2) SCALE 42. 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."
Accordingly, second writ petition is allowed Collector Allahabad is directed to immediately take possession of the pond in question and if it is not actually in the form of pond then it shall be converted into pond and funds of M.N.R.E.G.A. may be utilised for the said purpose and thereafter pond shall be let out for fisheries purposes after due advertisement and for at least Rs.10,000/- per hectare per year as held in the following authorities: Babban Ram Vs. State of U.P. 2004 (97) RD 675 and Ram Kumar Vs. State 2009 (107) R.D.557.
Regarding four other plots also inquiry shall be made by the Collector and if they belong to the gaon shaba then they must also be restored to the gaon sabha. If the contesting respondents do not voluntarily deliver possession of plot no.732 within a month then F.I.R. shall also be lodged again them. F.I.R. Must also be lodged against those officials who manipulated the entries in revenue records and disciplinary proceedings must also be initiated after suspending them.
An affidavit of compliance shall be filed by the Deputy Collector, Handia within three months and the case shall be listed for perusal of the compliance report in the last week of August 2011.
Office is directed to supply a copy of this order free of cost to Sri S.P. Misra learned standing counsel by tomorrow.
Order Date :- 09.5.2011