Dismissed

Pachchu v. State of U.P. and 5 Ors.

Allahabad HC15 Sept 2021WRIC/9218/2016

Case brief

AI extract

What is this about?

The writ petition challenging eviction orders was dismissed. The court upheld the main findings that the petitioner, an Asami pattedar, held the land under an expired patta and was liable for eviction. The court ordered the District Magistrate to restore the disputed pond area to its original state within six months.

What did the court decide?

The writ petition is dismissed. The District Magistrate is directed to resume possession of the disputed land and restore the pond within six months.

Pachchu Vs State of U.P. and 5 Ors. — Land Acquisition | Allahabad HC (2021)

¶1

Court No. - 18

¶2

Case :- WRIT - C No. - 9218 of 2016

¶3

Petitioner :- Pachchu Respondent :- State Of U.P. And 5 Ors. Counsel for Petitioner :- Ajay Kumar Srivastava,Sanjay Kr. Srivastava Counsel for Respondent :- C.S.C.,Brij Kumar Yadav,Saurabh Srivastava,Sharad Chand Rai

¶4

Hon'ble Ajay Bhanot,J.

¶5

Heard Shri Ajay Kumar Srivastava, learned counsel for the petitioner, Shri Sharad Chand Rai, learned counsel for the respondent no. 6 and the learned Standing Counsel for the State.

¶6

By the impugned order dated 04.03.2014 passed by the trial court in proceedings taken out under Section 202 of the U.P. Z.A.&L.R. Act,1950, directions to evict the petitioner from the disputed parcel of land have been issued with a further direction to make the necessary mutations in the revenue records. The appellate court in the impugned judgement dated 24.07.2015 rendered under Section 331(3) of the U.P.Z.A. & L.R. Act, 1950 has agreed with the findings of the trial court and affirmed its judgement.

¶7

Both the courts below in the impugned orders have returned the following concurrent findings of fact.

¶8

The disputed parcel of land was recorded under category 3 in the Khatauni. Category 3 is an arrangement of holdings described in the U.P. Land Records Manual as land held by Asamis.

¶9

The aforesaid entry was examined and upheld in the

¶10

consolidation proceedings. CH Form 45 issued at the conclusion of the consolidation proceedings testifies that entries which are consistent with the earlier records. Clause 3 category lands, as the provision discloses, belong to the Gaon Sabha. The disputed parcel of land is a pond area.

¶11

Rights of the petitioner are at best those of an Asami pattedar and no more. The rights of Asami pattedar are described and limited under Section 176 of the U.P.Z.A.&L.R. Act, 1950. The term of the Asami Patta granted to the petitioner/predecessor-in-interest of the petitioner has long expired. The courts below have found that after expiration of the period of Patta and its non renewal, the petitioner does not have any right to retain possession over the land. These findings of fact could not be successfully disputed before the courts below.

¶12

In this manner the petitioner was found to be in illegal occupation and his eviction was ordered under the relevant provisions of law by the impugned order dated 04.03.2014 passed by the learned trial court and the order dated 24.07.2015 passed by the learned appellate court.

¶13

For ease of reference relevant provisions of the Land Records Manual are extracted as under:

¶14

"A-124. Arrangement of holdings- The arrangement of land within each village in the khatuni shall be follows:

¶15

Part-I

¶16

(1) Land cultivated by Government of Gaon Samaj or any other local authority entrusted with management of land under Section 117-A of the U.P. Zamindari Abolition and Land Reforms Act, 1950.

¶17

¶18

(3) Land held by asamis who occupied or held land-

¶19

(a) as non-occupancy tenants of pasture land, or of land covered by water and used for the purpose of growing singhara and other produce, or land in the bed of river and used for casual or occasional cultivation, on the date immediately preceding the date of vesting;

¶20

(b) as non-occupancy tenants of land which the State government had, before the date of vesting, declared by the notification in the Gazette as part of a tract of shifting and unstable cultivation;

¶21

(c) as non-occupancy tenants of land which the State Government had, before the date of vesting, declared by notification in the Gazette to be intended or set apart for taungia plantation or community orchard or village farm or trenching grounds belonging as such to a local authority;

¶22

(d) on being admitted, on or after the date of vesting by the Gaon Samaj, as a lessee of land mentioned in sub-classes (a) to (c) above;

¶23

(e) as thekedars who become asamis under the proviso to sub-section (3) of Section 13 of the U.P. Zamindari Abolition and Land Reforms Act, 1950."

¶24

The procedure for eviction of illegal occupants is laid out in Section 202 of the U.P.Z.A. & L.R. Act, 1950. The provision is extracted hereunder for ease of reference:

¶25

"202. Procedure of ejectment of asami. - Without prejudice to the provisions of Section 338, an asami shall be liable to ejectment from his holding on the [suit of the [Gaon Sabha] or the land-holder as the case may be] on the ground or grounds-

¶26

(a) mentioned in Section [* * *]; 191 or 206,

¶27

[(b) that he-

¶28

(i) belongs to any of the classes mentioned in Clauses (a), (b), (c), (e), (g)

¶29

or (i) of sub-section (1) of Section 21 or sub-section (2) of the said section or in Clause (c) or (d) of Section 133; or

¶30

(ii) has acquired the rights of an asami under the Uttar Pradesh Land Reforms (Supplementary) Act, 1952;

¶31

and that he holds the land from year to year or for a period which has expired or will expire before the end of the current agricultural year,]

¶32

(c) that he belongs to the class mentioned in [Clause (d) of sub-section (1) of Section 21] and the mortgage has been satisfied or the amount owing under the mortgage has, whether or not it has become payable thereunder, been deposited in Court,

¶33

(d) that he [is an asami under Section 11] and the right to maintenance allowance does not any longer subsist;

¶34

(e) that he belongs to the class mentioned in clause (j) of sub-section (1) of Section 21 and that the cultivation of agricultural crops has become impossible.

¶35

(f) that he belongs to the class mentioned in Clause (h) of [sub-section (1) of Section 21] or Clause (b) of Section 133 and that-

¶36

(i) the land-holder wishes to bring the land under his personal cultivation and in cases where the lease is for a fixed term such term as expired; or

¶37

(ii) the disability has determined,

¶38

(g) that he [is an asami under Section 13] and the period mentioned in Clause (a) of sub-section (2) of [the said section] has expired;

¶39

(h) that there is an unsatisfied decree of arrears of rent outstanding against him and such decree can be executed by ejectment."

¶40

First ground of challenge is that the petitioner has been in possession since the year 1950. The argument has been made to be rejected. The factum of possession of the petitioner since 1950 over the disputed parcel of land was apparently not raised before the consolidation authorities. In any case, the consolidation courts have not found in favour of the possession of the petitioner. Form CH 45 is not in any manner incompatible with the judgement of the

¶41

consolidation authorities. The consolidation proceedings have been attained finality. Moreover, this is a disputed question of fact which cannot be examined in writ jurisdiction by this Court at this stage, since no perversity has been established in the findings of the courts below.

¶42

The second fault line in the impugned orders, according to the learned counsel for the petitioner is that the patta is not in the record. In the revenue records asami patta entry has been existing since long. Long standing revenue entries have a presumption of correctness in their favour. Of course, this is a rebuttable presumption, but the petitioner has failed to adduce any credible evidence to refute such presumption. The finding that the disputed parcel was land comprised in an asami patta is thus upheld.

¶43

Before this Court no perversity in the findings has been pointed out from the records. The learned courts below have observed full procedural propriety. Conclusions reached by the learned courts below are reasonable and achieve the applicable standards of evidence. In fact all relevant facts on the foot of which the impugned orders were passed are admitted by the petitioner. The process for holding the petitioner to be an illegal occupant cannot be faulted. The procedure for directing eviction of the petitioner being an illegal occupant has been strictly followed.

¶44

Before parting, this Court would like to examine the importance of ponds as part of ecological heritage of an area. Water bodies like ponds are natural resources that comprise the collective wealth of the local population as

¶45

well as the nation at large. These natural bodies and environmental assets are being subjected to degradation and encroachment. Such encroachment and degradation most often causes irreversible damage to the ecology.

¶46

The authorities are under an obligation of law to scrupulously maintain the records and measurements of natural assets of the community. It is also the statutory duty of authorities to ensure that any eviction upon such natural assets is vacated promptly in accordance with law.

¶47

At this stage, it would be apposite to fortify the narrative with judicial authorities in point.

¶48

In the case of Hinch Lal Tiwari Vs. Kamla Devi and others, reported at (2001) 6 SCC 496 , an issue relating to an encroachment over the public lands and official apathy in vacating such encroachment was posed to the Supreme Court. The Supreme Court considering the importance of public ponds and other natural resources and the onerous duty of the state authorities to bestow unbroken vigilance and restore such natural resources to their original state held thus:

¶49

"13. It is important to notice that the material resources of the community like forests, tanks, ponds, hillock, mountain etc. are nature's bounty. They maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality life which is the essence of the guaranteed right under Article 21 of the Constitution. The Government, including the Revenue Authorities i.e. Respondents 11 to 13, having noticed that a pond is falling in disuse, should have bestowed their attention to develop the same which would, on one hand, have prevented ecological disaster and on the other provided better environment for the benefit of the public at large. Such vigil is the best protection against knavish attempts to seek allotment in non-abadi

¶50

sites.

¶51

For the aforementioned reasons, we set aside the order of the High Court, restore the order of the Additional Collector dated 25-2-1999 confirmed by the Commissioner on 12-3-1999. Consequently, Respondents 1 to 10 shall vacate the land, which was allotted to them, within six months from today. They will, however, be permitted to take away the material of the houses which they have constructed on the said land. If Respondents 1 to 10 do not vacate the land within the said period the official respondents i.e. Respondents 11 to 13 shall demolish the construction and get possession of the said land in accordance with law. The State including Respondents 11 to 13 shall restore the pond, develop and maintain the same as a recreational spot which will undoubtedly be in the best interest of the villagers. Further it will also help in maintaining ecological balance and protecting the environment in regard to which this Court has repeatedly expressed its concern. Such measures must begin at the grass-root level if they were to become the nation's pride."

¶52

Concerns over degradation of natural resources and aggressive attempts encroach upon such natural resources in collusion with the state officials was noticed by the Supreme Court in Jagpal Singh v. State of Punjab , reported at (2011) 11 SCC 396 . In the case of Jagpal Singh (supra) the Supreme Court deprecating such conduct of the encroachers as well as the state authorities directed the State Government authorities to take efficacious steps to vacate such encroachments and restore the natural resources by setting forth the following holdings:

¶53

"19. 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 rainwater harvesting methods, which served them for thousands of years.

¶54

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

¶55

destroying their original character. This has contributed to the water shortages in the country. 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 is not used for the common benefit of the villagers but misappropriated by certain individuals. The time has come when these malpractices must stop.

¶56

In Uttar Pradesh the U.P. Consolidation of Holdings Act, 1954 was widely misused to usurp the 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.

¶57

For the reasons given above there is no merit in this appeal and it is dismissed.

¶58

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/unauthorised occupants of the 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 regularising the illegal possession. Regularisation should only be permitted in exceptional cases e.g. where lease has been granted under some government notification to landless labourers or members of the Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land."

¶59

Similarly, the Division Bench of this Court in the case of

¶60

Prem Singh v. State of U.P. and others , reported at 2012 (11) ADJ 404 issued peremptory orders to state authorities to take all necessary action in law and and clear such encroachments expeditiously:

¶61

"5.In view of direction noticed in the aforesaid circular, we are of the considered view that if complaints regarding unauthorized occupation over the public ponds or other similar public lands are received by the District Magistrate of a District, he should take all the required actions in view of law already settled in the case of Jagpal Singh and others.

¶62

In case, the District Magistrate finds some good reasons to seek guidance from the Members Committee indicated in Para-2 of the aforesaid circular, then he may refer the matter and seek guidance in appropriate cases.

¶63

So far as the present writ petition is concerned, we grant liberty to the petitioner to approach respondents no. 2 and 3 again with a certified copy of this order. The concerned respondents shall get appropriate inquiry made and take required action to protect public ponds as per law laid down by the Apex Court, expeditiously.

¶64

Let a copy of this order be furnished to the learned Standing Counsel for the State for communication to the Principal Secretary, Revenue, Government of Uttar Pradesh, who shall circulate a copy of this order to all the Divisional Commissioners as well as the District Magistrates so that number of such types of cases coming to this Court may be checked."

¶65

In wake of the preceding discussion, no interference is called for in the impugned order. The writ petition is liable to be dismissed and is dismissed.

¶66

The District Magistrate is ordered to forthwith resume possession over the disputed parcels of land and restore the pond to its original pristine stage, within a period of six

¶67

months from today.

¶68

Learned Standing Counsel to serve a copy of this order upon the District Magistrate, Kanpur Dehat, for compliance.

¶69

Order Date :- 15.9.2021 Dhananjai

Pachchu v. State of U.P. and 5 Ors.

Case brief

What is this about?

What did the court decide?

Pachchu v. State of U.P. and 5 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sushila Devi @ Sushila Singh Vs State of U P and 7 Others

Manoj Kumar Vishwakarma and 2 Others Vs the General Manager, Food Corporation of India and 2 Others

Mahendra Kumar and Another Vs State of U.P. and 16 Others

Ajad Khan Vs State of U.P. and 7 Others

Smt. Reeta Vs the State of U P and 4 Others

Nath Saran Verma Vs State of U.P. and 2 Others