Jagpal Singh &
Ors. Vs State of Punjab & Ors.
JUDGMENT
Markandey Katju, J.
1.
Leave
granted.
2.
Heard
learned counsel for the appellants.
3.
Since
time immemorial there have been common lands inhering in the village
communities in India, variously called gram sabha land, gram panchayat land,
(in many North Indian States), shamlat deh (in Punjab etc.), mandaveli and
poramboke land (in South India), Kalam, Maidan, etc., depending on the nature
of user. These public utility lands in the villages were for centuries used for
the common benefit of the villagers of the village such as ponds for various
purposes e.g. for their cattle to drink and bathe, for storing their harvested
grain, as grazing ground for the cattle, threshing floor, maidan for playing by
children, carnivals, circuses, ramlila, cart stands, water bodies, passages,
cremation ground or graveyards, etc. These lands stood vested through local
laws in the State, which handed over their management to Gram Sabhas/Gram
Panchayats. They were generally treated as inalienable in order that their
status as community land be preserved. There were no doubt some exceptions to
this rule which permitted the Gram Sabha/Gram Panchayat to lease out some of
this land to landless labourers and members of the scheduled castes/tribes, but
this was only to be done in exceptional cases.
4.
The
protection of commons rights of the villagers were so zealously protected that
some legislation expressly mentioned that even the vesting of the property with
the State did not mean that the common rights of villagers were lost by such
vesting. Thus, in Chigurupati Venkata Subbayya vs. Paladuge Anjayya, 1972(1)
SCC 521 (529) this Court observed : "It is true that the suit lands in
view of Section 3 of the Estates Abolition Act did vest in the Government. That
by itself does not mean that the rights of the community over it were taken
away. Our attention has not been invited to any provision of law under which
the rights of the community over those lands can be said to have been taken
away. The rights of the community over the suit lands were not created by the
landholder. Hence those rights cannot be said to have been abrogated by Section
3) of the Estates Abolition Act."
5.
What
we have witnessed since Independence, however, is that in large parts of the
country this common village land has been grabbed by unscrupulous persons using
muscle power, money power or political clout, and in many States now there is
not an inch of such land left for the common use of the people of the village,
though it may exist on paper. People with power and pelf operating in villages
all over India systematically encroached upon communal lands and put them to
uses totally inconsistent with its original character, for personal
aggrandizement at the cost of the village community. This was done with active
connivance of the State authorities and local powerful vested interests and
goondas. This appeal is a glaring example of this lamentable state of
affairs.
6.
This
appeal has been filed against the impugned judgment of a Division Bench of the
Punjab and Haryana High Court dated 21.5.2010. By that judgment the Division
Bench upheld the judgment of the learned Single Judge of the High Court dated
10.2.2010.
7.
It
is undisputed that the appellants herein are neither the owner nor the tenants
of the land in question which is recorded as a pond situated in village Rohar
Jagir, Tehsil and District Patiala. They are in fact trespassers and unauthorized
occupants of the land relating Khewat Khatuni No. 115/310, Khasra No. 369
(84-4) in the said village. They appear to have filled in the village pond and
made constructions thereon.
8.
The
Gram Panchayat, Rohar Jagir filed an application under Section 7 of the Punjab
Village Common Lands (Regulation) Act, 1961 to evict the appellants herein who
had unauthorizedly occupied the aforesaid land. In its petition the Gram Panchayat,
Rohar Jagir alleged that the land in question belongs to the Gram Panchayat,
Rohar as is clear from the revenue records. However, the respondents
(appellants herein) forcibly occupied the said land and started making
constructions thereon illegally. An application was consequently moved before
the Deputy Commissioner informing him about the illegal acts of the respondents
(appellants herein) and stating that the aforesaid land is recorded in the
revenue records as Gair Mumkin Toba i.e. a village pond. The villagers have
been using the same, since drain water of the village falls into the pond, and
it is used by the cattle of the village for drinking and bathing. Since the
respondents (appellants herein) illegally occupied the said land an FIR was
filed against them but to no avail. It was alleged that the respondents
(appellants herein) have illegally raised constructions on the said land, and
the lower officials of the department and even the Gram Panchayat colluded with
them.
9.
Instead
of ordering the eviction of these unauthorized occupants, the Collector,
Patiala surprisingly held that it would not be in the public interest to
dispossess them, and instead directed the Gram Panchayat, Rohar to recover the
cost of the land as per the Collector's rates from the respondents (appellants
herein). Thus, the Collector colluded in regularizing this illegality on the
ground that the respondents (appellants herein) have spent huge money on
constructing houses on the said land.
10.
Some
persons then appealed to the learned Commissioner against the said order of the
Collector dated 13.9.2005 and this appeal was allowed on 12.12.2007. The
Learned Commissioner held that it was clear that the Gram Panchayat was
colluding with these respondents (appellants herein), and it had not even
opposed the order passed by the Collector in which directions were issued to
the Gram Panchayat to transfer the property to these persons, nor filed an
appeal against the Collector's order.
11.
The
learned Commissioner held that the village pond has been used for the common purpose
of the villagers and cannot be allowed to be encroached upon by any private
respondents, whether Jagirdars or anybody else. Photographs submitted before
the learned Commissioner showed that recent attempts had been made to encroach
into the village pond by filling it up with earth and making new constructions
thereon. The matter had gone to the officials for removal of these illegal
constructions, but no action was taken for reasons best known to the
authorities at that time. The learned Commissioner was of the view that
regularizing such kind of illegal encroachment is not in the interest of the
Gram Panchayat. The learned Commissioner held that Khasra No. 369 (84-4) is a
part of the village pond, and the respondents (appellants herein) illegally
constructed their houses at the site without any jurisdiction and without even
any resolution of the Gram Panchayat.
12.
Against
the order of the learned Commissioner a Writ Petition was filed before the
learned Single Judge of the High Court which was dismissed by the judgment
dated 10.2.2010, and the judgment of learned Single Judge has been affirmed in
appeal by the Division Bench of the High Court. Hence this appeal.
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. The letter dated 26.9.2007 of the
Government of Punjab permitting regularization of possession of these
unauthorized occupants is not valid. We are of the opinion that such letters
are wholly illegal and without jurisdiction. In our opinion such illegalities
cannot be regularized. We cannot allow the common interest of the villagers
to suffer merely because the unauthorized occupation has subsisted for many
years.
14.
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. 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.
15.
In
many states Government orders have been issued by the State Government
permitting allotment of Gram Sabha land to private persons and commercial
enterprises on payment of some money. In our opinion all such Government orders
are illegal, and should be ignored.
16.
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.
17.
In
this connection we wish to say that our ancestors were not fools. They knew
that in certain years there may be droughts or water shortages for some other
reason, and water was also required for cattle to drink and bathe in etc. Hence
they built a pond attached to every village, a tank attached to every temple,
etc. These were their traditional rain water harvesting methods, which served
them for thousands of years.
18.
Over
the last few decades, however, most of these ponds in our country have been
filled with earth and built upon by greedy people, thus destroying their
original character. This has contributed to the water shortages in the country.
19.
Also,
many ponds are auctioned off at throw away prices to businessmen for fisheries
in collusion with authorities/Gram Panchayat officials, and even this money
collected from these so called auctions are not used for the common benefit of
the villagers but misappropriated by certain individuals. The time has come
when these malpractices must stop.
20.
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.
21.
For
the reasons given above there is no merit in this appeal and it is dismissed.
22.
22.
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.
23.
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.
24.
Although
we have dismissed this appeal, it shall be listed before this Court from time
to time (on dates fixed by us), so that we can monitor implementation of our
directions herein. List again before us on 3.5.2011 on which date all Chief
Secretaries in India will submit their reports.
.............................J.
[Markandey Katju]
.............................J.
[Gyan Sudha Mishra]
New
Delhi;
January
28, 2011
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