Saturday, June 29, 2013

Special teams to prevent encroachment


VIJAYAWADA, June 28, 2013

SPECIAL CORRESPONDENT

Special teams consisting of staff from revenue, police and minor irrigation departments should be constituted to prevent the encroachment of lakes/tanks and irrigation channels, said Additional Joint Collector N. Ramesh Kumar.

Mr. Kumar presided over meeting convened to discuss steps needed to increase the speed of recharging groundwater in 36 villages in Krishna district.
Ground Water Deputy Director A. Varaprasad explained to the revenue, irrigation and other department officials the need for steps to stop overexploitation of groundwater and its quick recharge.
He said 36 villages mainly in Nuzvid, Musunuru and Bapulapadu mandals have been categorised as villages over exploiting ground water.
Mr. Kumar said ground water was not getting recharged because of indiscriminate use of natural resources.
The encroachment of land in which there were water bodies or the channels that feed them was the prime reason for the failure in the recharging of the ground water.

Copyright© 2013, The Hindu


Monday, June 24, 2013

Booklet on govt land encroachment


Bangalore, June 23, 2013, DHNS:

The Bangalore Urban district administration will come out with a booklet on illegal encroachment of government land including forests in Anekal taluk.

Already an extensive survey of encroached government land is underway. Deputy Commissioner (Bangalore Urban) G C Prakash camped in Anekal to ensure that the work is executed without any “influence”.

Prakash told Deccan Herald that he held a meeting with the taluk and panchayat officers along with surveyors to ensure that the work is executed properly.

“We will recover every inch of government land. We will not spare schools, anganwadi centres, houses and commercial buildings if our survey shows that they are on the government land,” said Prakash.

Show cause notices to around 100 persons have been issued as per the court directions, asking why their properties, constructed on government or forest land, should not be demolished, he added. 

Friday, June 21, 2013

PIL accuses Adani SEZ of land grab, HC issues notices


Express news service: Ahmedabad, Fri Jun 21 2013, 04:03 hrs

A public interest petition filed in the High Court has accused Adani Ports and Special Economic Zone (APSEZ) authorities of encroaching upon pastoral land in Siracha village of Mundra taluka of Kutch district to build a "China Colony" probably for the accommodation of its employees.

The PIL was filed by 10 residents of Siracha village and a division bench has issued notices to respondents while scheduling the next hearing after two weeks.

According to the PIL, APSEZ has been allotted land in the region, including some chunks of Siracha's gauchar land. However, subsequently, APSEZ authorities started encroaching upon 40 acres of Siracha's pastoral land that was not allotted to it.

Petitioners alleged their attempts to stop the "encroachment" did not deter APSEZ authorities, who went ahead with the construction allegedly with the help of the state authorities and even got a mobile tower installed there to earn rent.

One of the petitioners also alleged he was threatened by an employee of APSEZ.

Narendra Jain, the lawyer for the petitioners, said the court issued notices to all the respondents, including the state government, APSEZ, Chief Conservator of Forests, Union of India, Siracha Gram Panchayat and the Kutch Collector.

Copyright ©2013 The Indian Express ltd. All Rights Reserved.

HC notice to state govt, Centre, Adani Group

AHMEDABAD: The Gujarat high court Thursday issued notices to the Centre, the state government, the Adani Group-owned Adani Port Special Economic Zone (APSEZ) and Shiracha village panchayat over a PIL filed by villagers accusing the company of encroaching on the village's grazing land.

The petitioners have claimed that the company was allotted part of the village's gauchar land for development of APSEZ but, besides the allotted land, the company has been putting up construction on some 40 acres of gauchar land.

The petition filed through advocate Narendra Jain contends that the company has been expanding its residential colony, known as China Colony. It also claims that the company is building a party plot on the encroached gauchar land. The construction is without permission from any of the statutory bodies, including the panchayat, the petitioners have alleged.


Copyright © 2013 Bennett, Coleman & Co. Ltd. All rights reserved.


Thursday, June 20, 2013

Real estate mafia grabs govt land in Karnataka


BANGALORE, June 18, 2013

Private builders carve up land into sites in collusion with officials

A surprise inspection by officials on the Bangalore’s outskirts has unearthed a major scam running to multiple crores, where close to 1,000 acres of government land was grabbed by real estate mafia and sold to hundreds of gullible people as sites.
Private builders were found to have encroached upon 965 acres of land in the Bannerghatta village panchayat limits, formed layouts and sold them, an inspection by the office of the Deputy Commissioner of Bangalore (Urban) in the panchayat limits covering 10 villages has concluded.
Tip of the iceberg

This could just be the tip of the iceberg and we are continuing inspections in other village panchayats falling under Bangalore district,” said Deputy Commissioner of Bangalore District (Urban) G.C. Prakash, who led the inspection, adding that the nature of the scam was much bigger than what the inspection on Monday revealed. The builders, in collusion with the village panchayat officials, created illegal khatas to claim ownership of the government land. However, they could not change the regular RTC (Record of Rights) from the Revenue Department which clearly shows that the land in question belongs to the government. Similar revelations of large-scale government land encroachments were made earlier by the joint legislature committees led by A.T. Ramaswamy and a task force for the recovery of public land led by V. Balasubramaniyan.
Among the major encroachers is the management of Champakdhama

Copyright© 2013, The Hindu

Land records fudged, 965 acres grabbed in Anekal

TNN Jun 18, 2013, 04.07AM IST

BANGALORE: Encroachment of huge tracts of government land - approximately to the tune of 965 acres worth crores of rupees - has been unearthed in Anekaltaluk, Bangalore Urban district. This was during a surprise field visit by deputy commissioner GC Prakash and other revenue officials on Monday.

"We have found illegal transactions of land by local civic bodies like village panchayats to private individuals who later formed private layouts and sold housing plots to other individuals. The encroached lands include lake beds, storm water drains, government lands and gomala (grazing land). We even found that a property belonging to Champakadhamaswamy temple, measuring over 26 acres, was transferred illegally in the name of land-grabbers who later sold it to individual site seekers in Anekal taluk," said Prakash.
Revenue officials said the frauds were detected during inspection of two hoblis in the taluk - Kasaba and Jigani. The records of villages coming under them - Bannerghatta, Sampigehalli, Hulimangala, Vabesandra, Nandapura, Hullahalli, Dhingipura, Dhootanahalli, Kallanayakana Agrahara, Bilvaradahalli and Mantapa - were checked and largescale fraud detected, revenue officials said.

They said there was a lot of encroachment in Bannerghatta Biological Park (BBP), the quantum of which can be given only after verification. The revenue department has plans to inspect areas coming under Sarjapur and Attibele hoblis of Anekal taluk next week.

© 2013 Bennett, Coleman & Co. Ltd. All rights reserved

'965 acres of government land encroached'

By Express News Service – BANGALORE
18th June 2013 09:52 AM

About 965 acres of government land in the Green Belt area around Bannerghatta has been encroached upon for illegal layouts. Following repeated complaints about the violations, Bangalore Urban Deputy Commissioner G C Prakash on Monday conducted a raid in Bannerghatta gram panchayat limits of Anekal and found 794 illegal layouts.
Prakash told Express: “Illegal constructions have come up in gomala (grazing) land, on rajakaluve (main storm water drain) and gundlu topu (forestry land), gramathana (village administered land) and kharab (barren) land. Some layouts have been formed in just one acre, others in three acres. I have ordered eviction of the same.’’
The raid that started from 10 am went on till 3 pm. The DC had summoned panchayat officials and revenue officers. Prakash pointed out that most of the government land in Anekal taluk comes under the Green Belt. One such case is encroachment of the land belonging to the Champakadhama Temple.
According to official figures, the temple should have 33 acres.
After several encroachments, the temple presently has less then 5 acres. The Bannerghatta Lake too has shrunk and there is no water, no storm water drain and no culverts because of encroachments.
I had asked for the documents of the whole of Anekal, so that we can know extent of the encroachment. I will initiate action on those who were involved in these illegalities,” Prakash said.
Prakash said government land was sold to builders in connivance with gram panchayat officials. “This was resold to middle class people,” he added.
Issue Notice to Warn People’
More than 20,000 sites can be been formed in this encroached area. Officials have been asked to issue a notice in newspapers warning public not to buy revenue land, as it will have legal complications.
Around 34,000 acres of land in Bangalore Urban has been encroached as per the reports of A T Ramaswamy Committee. While 17,000 acres were taken back by various government departments, the district administration has recovered 10,000 acres.
The remaining 7,000 acres are still encroached.
Copyright © 2012 The New Indian Express. All rights reserved.














Wednesday, June 19, 2013

Odisha: Activists welcome HC judgement asking State to make law for protection of water bodies


Tuesday October 16, 2012
Ranjan Panda

"In Odisha, what we can see as ground reality is that more and more water bodies are being encroached by the rich and powerful both in urban and rural areas.  Now, after the Odisha High Court judgement, the government must immediately step into action and free all water bodies of Odisha from encroachment.

As we come to know from media reports, the Honourable High Court of Odisha has directed the government of Odisha to formulate a law to protect water bodies of the state within two years. Water Initiatives Odisha (WIO) welcomes this judgement and thanks the Honourable Court for this.

On January 28, 2011 the honourable Supreme Court of India, in a historic judgement, had directed all the State Governments of the country to prepare schemes for eviction of illegal/ unauthorized occupants of Gram Sabha/ Gram Panchayat/ Poramboke/ Shamlat land saying these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. WIO had then urged upon the Government of Odisha to see to the issues raised by this judgment and take appropriate action to free all water bodies of the state from all sorts of encroachments and ensure their protection and revival from the destructive forces including pollution from industries and urbanization.

As of now we don’t know what steps the state government has taken in that regard. What we can see as ground reality is that more and more water bodies are being encroached by the rich and powerful both in urban and rural areas. Now, after the High Court judgement, the government must immediately step into action and free all water bodies of the state from encroachment.

Surface water bodies play a major role in retaining rain water and recharging the local ecology. They are also a major livelihood support system for many poor farmers and communities depending on fishery. WIO therefore urges upon the government to immediately declare a Plan of Action to free all water bodies of state from all forms of encroachment.

Freeing water bodies from encroachments would also lead to some discontent among local people and some people might have to be displaced. The government must sensitively look into such issues and where it involves displacement of poor people the government should talk to them in a cohesive manner and provide appropriate rehabilitation.

However, where the water bodies are encroached by the rich and powerful such as estate developments and private builders they should be heavily fined and directed to restore the water bodies with their own funds. Odisha is already a water stressed state and we can no more neglect water bodies, WIO urges.

WIO has been urging upon the state government to formulate a Policy on Water Bodies. Time the government starts discussing with people and experts on this and builds a strong Policy to protect, preserve and rejuvenate all water bodies of the state. The state must ensure that not a single water body dies of encroachment, industrialization, pollution and urbanisation, WIO demands.


Copy Right 2004 @ HOTnHIT Newsfeatures, Bhubaneswar, INDIA.

Friday, June 7, 2013

In Other Courts: IN THE HIGH COURT OF DELHI AT NEW DELHI


IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : Delhi Land Reforms Act, 1954
Date of decision: 11th February, 2011
W.P.(C) 4088/2010

M/S HIRA LAL MOHAN DEVI RITA GUPTA
MEMORIAL TRUST & ANR. ..... Petitioners
Through: Mr. Ravi Gupta, Sr. Advocate with
Mr. Ankit Jain, Advocate
Versus
NARENDER KUMAR & ORS. ..... Respondents
Through: Mr. V.P. Singh, Sr. Advocate with
Mr. Sandeep Khatri, Advocate for respondent Nos.1 to 6.
Mr. V.K. Tandon, Advocate for respondent No.7.

CORAM :-
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.
1. The petition impugns the order dated 7th May, 2010 of the Financial Commissioner, Delhi allowing the revision petition of the respondents 1 to 6 herein under Section 187 of the Delhi Land Reforms Act, 1954 (Reforms Act) against the order dated 21st April, 2008 of the Deputy Commissioner, District North-West, Delhi allowing the application of the petitioners for taking over the land underneath a pathway/rasta on two sides of which the property of petitioners was situated, in exchange for other land belonging to the petitioners.

2. Notice of the writ petition was issued and vide order dated 6th July, 2010, the operation of the order of the Financial Commissioner stayed. The pleadings have been completed. The counsels have been heard.

3. The petitioners in their application dated 22nd February, 2008 for exchange, as aforesaid, to the Deputy Commissioner, District North-West of the Government of NCT of Delhi stated that the petitioner no.1 is a charitable Trust engaged inter alia in educational activities; that it was running an Engineering College in the name and style of H.M.R. Institute of Technology & Management at Hamidpur village, Delhi falling in the Revenue Estate of Narela; that the aforesaid College was built on land otherwise contiguous but separated by a 25 feet wide rasta / pathway; claiming that the said rasta / pathway was disturbing the privacy of the students of the Institute and invoking Section 40 of the Reforms Act, permission was sought for allotment of the land of the rasta / pathway on both sides of which the petitioners’ Institute was situated and in exchange equivalent land in another Khasra number was offered.

4. The Deputy Commissioner on 17th March, 2008 sought status report from the SDM/BDO. A status report dated 22nd March, 2008 was submitted by the Consolidation Officer, Narela reporting that the building of the College/Institute of the petitioners existed on both sides of the rasta/pathway and stating that the proposal of the petitioners would be beneficial to the villagers as the land offered in exchange by the petitioners would extend the other rasta / pathway existing till the offered land and enable joining of the other rasta/pathway with another rasta / pathway.
5. The Deputy Commissioner on the basis of the aforesaid report, vide order dated 21st April, 2008, expressing an opinion that the proposed exchange is in public interest and will facilitate safety and security of students especially the girl students studying in the Institute and will also serve the interest of residents of the village, allowed the exchange.
6. The respondents 1 to 6 being the bhumidhars of land in Khasra numbers adjacent to the rasta / pathway which the Deputy Commissioner vide order aforesaid had directed to be exchanged as aforesaid, preferred the revision petition aforesaid to the Financial Commissioner. They also stated that they were running an educational institution on their land and the closure of the rasta/pathway owing to the exchange aforesaid would affect them as well as over 500 students studying in their School.

7. The Financial Commissioner vide order impugned in this petition has allowed the revision, set aside the order of the Deputy Commissioner but granted liberty to the petitioners to, in accordance with law and the procedure approach the Deputy Commissioner afresh in the matter.

8. Section 40 of the Reforms Act under which the petitioners had applied and whereunder the Deputy Commissioner exercised the power, is as under:
40. Exchange – (1) Subject to the provision of Section 33, a Bhumidhar may exchange lands held by him as such –
(a) For lands held by any other Bhumidhar as such, or
(b) For lands for the time being vested in the Gaon Sabha or local authority or in Government.
Provided that no such exchange shall be made except with the permission of the Deputy Commissioner, who will refuse permission if the difference between the area of land given in exchange and the land received in exchange in terms of standard acres is more than ten per cent of the area in standard acres of the land which is smaller in area.
(2) Where the Deputy Commissioner permits exchange, he shall also order the relevant annual register to be corrected accordingly.
(3) On exchange made in accordance with sub-section (1), the parties to such exchange shall have the same rights in the land received in exchange as they had in the land given in exchange.”
9. Rules 25 and 26 of the Delhi Land Reforms Rules, 1954 (Reforms Rules) providing the procedure for exchange under Section 40 of the Act (supra) are as under:-
25. Exchange (Section 40) – A bhumidhar may exchange land held by him as such for land held by any other bhumidhar or for lands for the time being vested in the Gaon Sabha or local authority or in the Government by application to the Deputy Commissioner.”
26. Procedure – (1) Where any exchange has been agreed upon, a party to the agreement shall apply to the Deputy Commissioner to record the same in the record of rights.
(2) The application shall contain the following particulars and be accompanied by the following documents –
(i) The Khasra number of the plot –
(a) which the applicant wishes to receive and of the plots which he offers in exchange of;
(b) which the parties have agreed to exchange under an agreement;
(ii) certified copies of the khatauni relating to the khatas in which all such
plots are included.
(iii) a statement to the effect that neither of the parties will hold land in the State exceeding thirty standard acres as a result of the exchange; and
(iv) a statement showing the details of any valid deeds, mortgage or other encumbrances with which the land to be exchanged may be burdened, together with names and addresses of lessees, mortgagees or holders of other encumbrances.

(3) On receipt of the application, if the Deputy Commissioner is satisfied that the exchange is not invalid according to the restrictions laid down in Section 33, call upon the parties, the lessees, mortgagees or holders of other encumbrances, if any, to show cause why the exchange should not be made. Every such notice shall be accompanied by a copy of the applicant, which shall be supplied by the applicant.

(4) The Deputy Commissioner shall thereupon decide the objections, if any, and pass suitable orders. If he decides that the exchange should be allowed, he shall also make an order for the delivery of possession, if necessary, and for the correction of papers.”
10. The senior counsel for the petitioners has argued that the aforesaid provisions have been complied with by the Deputy Commissioner and thus the Financial Commissioner erred in setting aside the order. It is contended that under Rule 26(3) (supra), the residents of the village as the respondents 1 to 6 claim to be, have no right of being heard and the right of hearing is only of lessees, mortgagees or holders of other encumbrances of the land. It is thus contended that the respondents 1 to 6 had no locus to object and the Financial Commissioner erred in entertaining their revision petition.

11. The Financial Commissioner in the impugned order has also noted the provisions of the Delhi Panchayat Raj Act, 1954 (Panchayat Raj Act). Section 34 thereof empowers the Gaon Sabha to acquire land and Section 35 vests all public property within the jurisdiction of Gaon Sabha in the Gaon Sabha.

12. Chapter VIII of the Delhi Panchayat Raj Rules, 1959 (Panchayat Raj Rules) deals inter alia with transfer of property and rules regulating the power of Gaon Panchayat to acquire, hold and transfer property and to enter into contracts. Rule 176 thereunder concerns transfer of immovable property vested in the Gaon Panchayat. Rule 185 permits transfer only on resolution of the Gaon Panchayat and with the sanction of the Chief Commissioner.

13. It was the contention of the respondents 1 to 6 before the Financial Commissioner that the order of the Deputy Commissioner of closure of rasta/pathway and allowing allotment/vesting thereof in the petitioners in exchange for land of the petitioners elsewhere was bad inter alia for the reason of no notice having been issued to the general public. The respondents 1 to 6 before the Financial Commissioner had relied on policy
guidelines issued by the ADM-cum-Director (Panchayat) for exchange of Gaon Sabha land with private land. Reliance was also placed on notification dated 30th November, 2000 prohibiting allotment of Gaon Sabha land to any individual or institution.

14. The petitioners had opposed the aforesaid argument by contending that the instructions and the notification were contrary to Section 40 of the Reforms Act the power whereunder could not be curtailed.

15. The Financial Commissioner noted the apparent conflict between Rules 25 & 26 of the Reforms Rules and Rule 185 of the Panchayat Raj Rules; while Reforms Rules did not require public notice or hearing to the public, Rule 185 of the Panchayat Raj Rules so provides. I may notice that in fact it was owing to the said observation in the order of the Financial Commissioner that the notice of the writ petition was issued.

16. The senior counsel for the petitioners has contended that while the Financial Commissioner had at one place in the impugned order observed that the administrative instructions could not override the Reforms Rules, he has at another place held that the said instructions had to be abided and the exchange could have been effected only after public notice and after the consent of the Gaon Sabha/Panchayat.
17. The senior counsel for the petitioners has also argued that though the exchange aforesaid has resulted in closure of one rasta / pathway i.e. the one between the Institute of the petitioner on both sides thereof, it has created another rasta/pathway elsewhere on the land surrendered by the petitioners. It is contended that the rasta/pathway created on the land surrendered by the petitioner has been found by the Deputy Commissioner to be more
beneficial to the villagers.

18. The senior counsel for the respondents 1 to 6 has contended that a rasta/pathway could never have been the subject matter of exchange. It is contended that the same is not part of Bhumidhari land which alone can be the subject matter of exchange. Reliance is placed on The Municipal Corporation of Delhi Vs. Hira Lal Tota Ram AIR 1972 Delhi 29 laying down that MCD is competent to remove encroachment on public street in rural / village areas also, though Gaon Panchayat may also act under the Panchayat Raj Act and the Reforms Act.
19. It is also argued that the rastas / pathways / streets do not vest in the Gaon Sabha.

20. Reliance is also placed on the recent judgment dated 28th January, 2011 of the Supreme Court in SLP(C) No.3109/2011 titled Jagpal Singh Vs. State of Punjab commenting on the dissipation of Gaon Sabha land and issuing directions for preservation thereof.

21. The senior counsel for the petitioners in rejoinder has objected that no plea with respect to the applicability of the Delhi Municipal Corporation Act, 1957 was raised before the Financial Commissioner or even in the counter affidavit filed in this Court and cannot be taken suddenly during the hearing. He contends that if the same was to be considered, opportunity ought to be given to meet the same. He in response to the argument that the views of the Gaon Sabha are a must has drawn attention to the reply filed by the Gaon Sabha to the Revision Petition before the Financial Commissioner, where the Gaon Sabha had sought dismissal of the revision petition of the respondents 1 to 6.

22. The counsel for the respondent No.7 Gaon Sabha has invited attention to the report dated 7th January, 2010 submitted by the Deputy Commissioner before the Financial Commissioner where it was reported that due to exchange earlier allowed, the rest of the land of the rasta / pathway has become useless inasmuch as the same could not be used by the villagers to approach the pucca road (phirni) on the periphery of the village and that the allotment of land of rasta to petitioners blocks the Right of Way, preventing access by the villagers. It was further reported that the land surrendered by the petitioners was at a distance of 400 mtrs. from the rasta / pathway land given to the petitioners and could not be used as rasta / Right of Way by the villagers.

23. The aforesaid would show that while the person earlier officiating as the Deputy Commissioner had opined that the exchange proposed by the petitioners was in the interest of the villagers, the present incumbent does not share the same view. The same demonstrates the fickleness in the decision making process and the manner in which the officials are discharging their duties.

24. The senior counsel for the respondents 1 to 6 at the fag end of the hearing has raised another interesting argument which he fairly admits occurred to him only during the hearing before the Court. He contends that even if Section 40 of the Reforms Act and Rules 25 & 26 of the Reforms Rules were held to be applicable, the same only provide for an exchange which is a matter of contract between the petitioners and the Gaon Sabha, with the permission of the Deputy Commissioner. It is argued that the Deputy Commissioner in the present case has proceeded on the premise that he could allow the exchange even without the Gaon Sabha agreeing to the same. It is contended that the Gaon Sabha is an elected body and without the resolution of the Gaon Sabha or the consent of the Development Commissioner now exercising powers of the Gaon Sabha, no exchange could in any case have been possible and the permission earlier granted by the Deputy Commissioner and set aside by the Financial Commissioner is in any case of no avail.

25. In my opinion the last contention aforesaid of the respondents 1 to 6 is sufficient for dismissal of this petition. Section 40 of the Reforms Act permits exchange of land between Bhumidhars inter se or between a Bhumidhar and the Gaon Sabha. However, the same has not been left only to the discretion of the exchanging parties and Section 40 of the Reforms
Act requires the permission to be obtained for such exchange.

26. In the present case, the application / proposal of the petitioner for exchange was unilateral. The Gaon Sabha in whom the land underneath the rasta / pathway sought to be exchanged was claimed to be vesting, did not join in the proposal of the petitioner. In fact, there is nothing to show that the Gaon Sabha at any time consented to such an exchange. It is not the case of the petitioners also. All that is available is, that the Gaon Sabha by seeking dismissal of the revision petition before the Financial Commissioner consented to the exchange. However, the said consent even if any, is again without any basis inasmuch as it is not shown that there was any resolution of the Gaon Sabha to the said effect or that the reply to the Revision Petition was filed under the authority of any officer empowered to consent to the exchange on behalf of the Gaon Sabha.

27. Rule 26(1) of the Reforms Rules also uses the expression “where any exchange has been agreed upon” and requires “a party to the agreement” to apply to the Deputy Commissioner to record the same in the record-ofrights. There is nothing to show that when the petitioners applied to the Deputy Commissioner, there was any agreement. There is also nothing to show that the Deputy Commissioner was exercising the powers of the Gaon Sabha. The Deputy Commissioner under Rule 26(1) of the Reforms Rules is to be approached only for recording the exchange in the record of rights and Rule 26 of the Reforms Rules lays down the procedure for so permitting the exchange.

28. Though as aforesaid, the petition is liable to be dismissed on this ground alone but since detailed arguments on other aspects have been heard, it is deemed appropriate to deal with the other contentions raised also.
29. The first question which arises is whether the land of the rasta / pathway vests in the Gaon Sabha. Repeated enquiries were made during the hearing in this regard but the senior counsels could only draw attention to Section 7 of the Reforms Act extinguishing rights of proprietor(s) pertaining inter alia to pathways and vesting the same in the Gaon Sabha. Attention of the counsels was invited to Section 3(13) of the Reforms Act defining “land” and which does not include within its ambit the land underneath rastas/pathways. It was enquired that if that were so, how the land underneath rastas/pathways could be land which the Gaon Sabha could exchange under Section 40 of the Reforms Act.
30. I further find that Section 154 (1)(vi) of the Reforms Act vests pathways situated in a Gaon Sabha Area in the Gaon Sabha. The said provision also treats pathways differently from “all lands whether cultivable or otherwise” dealt with in Section 154 (1)(i). Thus, pathways/rastas, though vesting in Gaon Sabha, cannot be said to be “land for the time being vested in Gaon Sabha” within the meaning of Section 40 of the Reforms Act. The land vesting in Gaon Sabha is differently dealt from pathways vesting in Gaon Sabh mattefr o ejectment of unauthorized occupants therefrom also. While provision for former is made under Section 86A, for the latter provision is made in Section 87 of the Reforms Act. The same also demonstrates that the pathways/rastas though vesting in the Gaon Sabha cannot be said to be the land of the Gaon Sabha which the Gaon Sabha can agree to exchange.
31. Mention may also be made of Section 73 of the Reforms Act which describes the land to which the Gaon Sabha is entitled to admit any person. The same read with Section 3(13) of the Reforms Act also does not show that the Gaon Sabha is entitled to admit any person as Bhumidhar to any land of rasta. There being no provision in the Reforms Act for the Gaon Sabha to admit any person to the land of the rasta, the question of the Gaon Sabha being entitled to exchange the land of the rasta does not arise.
32. Parity may be drawn of the rights even of municipalities with respect to streets, inspite of statutory provisions vesting the streets in the municipalities. A Division Bench of the Madras High Court as far back as in S. Sundaram Ayyar v. The Municipal Council of Madura [1902] I.L.R. 25 Mad. 635 held that when a street is vested in Municipal Council, such vesting does not transfer to the Municipal authority the rights of the owner in the site or soil over which the street exists - it does not own the soil – it only has the exclusive right to manage and control the street. The said view was approved by the Apex Court in Municipal Board, Manglaur Vs. Sri Mahadeoji Maharaj AIR 1965 SC 1147. It was held that the Municipalities do not have a right to allow any person to put up structure on a public pathway and which structures were not necessary for the maintenance or user of it as a pathway.
33. In my opinion, the vesting of the pathways / rastas in rural areas in the Gaon Sabha cannot be at a higher pedestal than the vesting of the streets in the municipality and the Gaon Sabha, only has the right to management and maintenance of the rastas / pathways and has no right of ownership therein so as to admit any other person into possession of the rasta or to exchange the land of the rasta for any consideration.
34. The Supreme Court in Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan AIR 1997 SC 152 again held that footpaths, streets and pavements are public property which are intended to serve the convenience of general public, they are not laid for private use and indeed their use for a private purpose frustrates the very object for which they are carved out; the facility which has matured into a right cannot be set at naught by allowing
encroachments thereon. It was further held that public property needs to be preserved and the Constitutional Court has a Constitutional duty as sentinel on the qui vive to enforce the right of a citizen when he approaches the Court for perceived legal injury.
35. I am therefore of the opinion that the Gaon Sabha has not been vested with any power to admit any person on to land of the rasta / pathway or to exchange the land of the rasta with any other land.
36. Though arguments were also heard with respect to the provisions of the Delhi Municipal Corporation Act, 1957 but since the senior counsel for the petitioners had contended that the petitioners have been taken by surprise with respect thereto, I am not dealing with the said aspect of the matter.
37. The petition therefore fails. The order of the Deputy Commissioner (set aside by the Financial Commissioner) is found to be without jurisdiction and in contravention of law. The interim order granted in this petition is vacated. If the petitioners have in pursuance of the order of the Deputy Commissioner closed the rasta/pathway aforesaid and/or included the same in their property, the petitioners are directed to within four weeks of today, restore
the rasta / pathway to the original position. The petitioners if have parted with possession of land offered in exchange, shall similarly be entitled to repossess the same.

No order as to costs.

RAJIV SAHAI ENDLAW
(JUDGE)













Tuesday, June 4, 2013

Tahsildars to check encroachment of government land


BANGALORE, May 29, 2013

Taking serious note of encroachment of government land in different parts of the State, Chief Minister Siddaramaiah on Tuesday declared that the tahsildars of taluks would be held responsible for any encroachment of government land in their jurisdiction.
Briefing presspersons after his maiden meeting with the deputy commissioners of districts, chief executive officers of zilla panchayats and heads of the government departments, here, the Chief Minister directed the tahsildars to identify government land in their jurisdiction, conduct a survey of such lands, fence them and put up a board stating that the properly belonged to the government.
He asked them to take steps to recover the land encroached by land sharks.
He said the Cabinet would take a decision on the implementation of the A.T. Ramaswamy Committee that looked into encroachment of government lands in and around Bangalore.
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