# Brij Mohan Mishra And Others v. The State Of U.P. Thru Secy. And Others

- **Citation:** (2013) 1 ILRA 212
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-02-04
- **Case number:** Civil Misc. Writ Petition No. 5348 of 2013
- **Bench:** Sunil Ambwani, Bharat Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brij-mohan-mishra-and-others-v-the-state-of-u-p-thru-secy-and-others-42428
- **Pages:** 4

## Headnote

Constitution
of
India,
Article
226demolition
of
constructionencroachment
of
public
pond-after
survey
report-encroachment
established-order
of
demolition
following direction of Hinch Lal Tiwari
Case
passed-petition
on
ground
of
opportunity
or
taking
recourse
of
ejectment
under
section
122-B
of
U.P.Z.A.L.R. Act-held-not available-when
encroachment
established-demolition
and ejectment -proper

Held: Para-14

In this case on the admitted position
that the petitioner has encroached upon
the land recorded as pond, which were
verified on the spot inspection by the
ADM (F & R), Jaunpur on 8.2.2010, such
constructions must be demolished and
the pond restored to the villagers.
Case Law discussed:
AIR 2001 SC 3215; AIR 2011 SC 1123

## Text

212 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
dismissed, it would be open to the
respondents workman to withdraw this
amount upon an application being filed
before the Labour Court.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.02.2013

BEFORE
THE HON'BLE SUNIL AMBWANI,J.
THE HON'BLE BHARAT BHUSHAN,J.

Civil Misc. Writ Petition No. 5348 of 2013

Brij Mohan Mishra And Others ...Petitioner
Versus
The State Of U.P. Thru Secy. And Others

 ...Respondents

Counsel for the Petitioner:
Sri Radha Kant Ojha
Sri Ratnakar Upadhyay

Counsel for the Respondents:
C.S.C.
Sri P.C. Pathak

Constitution
of
India,
Article
226demolition
of
constructionencroachment
of
public
pond-after
survey
report-encroachment
established-order
of
demolition
following direction of Hinch Lal Tiwari
Case
passed-petition
on
ground
of
opportunity
or
taking
recourse
of
ejectment
under
section
122-B
of
U.P.Z.A.L.R. Act-held-not available-when
encroachment
established-demolition
and ejectment -proper

Held: Para-14

In this case on the admitted position
that the petitioner has encroached upon
the land recorded as pond, which were
verified on the spot inspection by the
ADM (F & R), Jaunpur on 8.2.2010, such
constructions must be demolished and
the pond restored to the villagers.
Case Law discussed:
AIR 2001 SC 3215; AIR 2011 SC 1123

(Delivered by Hon'ble Sunil Ambwani,J.)

1. We have heard Shri R.K. Ojha,
learned
counsel
appearing
for
the
petitioner. Learned Standing Counsel
appears for the State respondents. Shri
Navin Sinha, Sr. Advocate assisted by
Shri P.C. Pathak appears for respondent
no.5.

2. On a complaint made by Shri
Prem Shanker Mishra, the cousin brother
of the petitioners, proceedings were
initiated against the petitioner for having
illegally encroached on the village pond
situate in Plot No.611/0-348 hects. in
Village Dhania Mau. The Sub Divisional
Magistrate directed the complaint to be
enquired. After taking measurements and
receiving the report an order was passed
by
the
Sub
Divisional
Magistrate,
Badlapur, Jaunpur on 18th January, 2013
directing encroachments made by the
petitioner, on the land recorded as pond to
be removed giving rise to this writ
petition.

3. Learned counsel appearing for the
petitioner submits that the proceedings
have been taken exparte against the
petitioner. No notice was given, nor any
action was initiated under Section 122B
of the UPZA & LR Act, which prescribes
a procedure for eviction from the Gaon
Sabha land including pond. The orders
passed for demolition and eviction will
cause serious civil consequences. It is also
stated that the orders have been passed in
violation of the principles of natural
justice.

4. Shri Navin Sinha on the other
hand submits that the proceedings were
1 All] Brij Mohan Mishra And Others Vs. The State of U.P. Thru. Secy. And Others
213
actually initiated in the year 2010 on the
complaint of Smt. Barfi Devi, President of
Jal
Prabandhak
Samiti,
Dhaniamau,
Baksha,
Teh.
Badlapur,
Jaunpur.
Enquiries were made on the complaint on
5.4.2010 on which it was verified that
Plot No.611 area 0-3480 hects. in Village
Dhania Mau, Block Baksha, Tehsil
Badlapur, Distt. Jaunpur recorded as
pond, has been encroached by the
petitioners.
On
such
verification
directions were issued by the Addl.
District Magistrate, Finance & Revenue,
Jaunpur on 9.2.2010, after he also caused
inspections on 8.2.2010, and verified the
encroachment,
to
demolish
the
constructions made over the pond and to
evict them.

5. Shri Navin Sinha submits that in
the present case it is not denied that the
plot in question is recorded as pond. It is
also not denied that the petitioner have
house adjacent to the pond and that he has
made construction in the pond by raising
pillars. The objections of the petitioner
that they had constructed their house on
the disputed portion of the land in the year
1945-50 is wholly misconceived in as
much as no evidence whatsoever has been
placed nor any objection was filed to that
effect against the orders passed on
10.2.2010 and the orders challenged in
this writ petition passed on 18th January,
2013.

6. In the present case it is not denied
by the petitioner that the land in question
is recorded as pond. The petitioner's
house is adjacent to the pond and that
there are constructions over the pond
made by the petitioners.

7. The petitioner has made vague
statement in para 9 of the writ petition
that the constructions were made in 194550 prior to the date of vesting (when the
Zamindari in the State of U.P. were
abolished). He has not enclosed any
document of proof, nor has he filed any
objection before the Sub Divisional
Magistrate or the District Magistrate.

8. The Supreme Court in Hinch Lal
Tiwari v. Kamala Devi & Ors., AIR 2001
SC 3215 held that ponds are part of
habitat of the village. The water reservoirs
repeatedly encroached by the villagers,
raise important environmental issues,
which must be addressed by discouraging
and demolishing such constructions and
restoring land to the common use by the
villagers.

9. In Jagpal Singh & Ors. v. State of
Punjab & Ors., AIR 2011 SC 1123 the
Supreme Court observed in paragraphs
16, 18 and 22 as follows:-

"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) 9 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.

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
214 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
has contributed to the water shortages in
the country.

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."

10. In the present case we may
observe that the petitioner has admitted
that construction of his house over part of
land, which has been recorded as pond.
He has not challenged the extent of the
encroachment nor has he questioned the
complaint of encroachment made by his
own family members. The order is
challenged only on the ground that the
constructions are existing since prior to
the date of vesting. We do not find that
there is any proof of the objection nor any
such objection was raised before the
competent authority.

11. The zamindari was abolished in
the State of U.P., with the date of vesting
as 1st April, 1951. It is difficult to believe
that since thereafter, if there were any
constructions, on the pond, they were not
recorded nor any effort was made to get
such old constructions, if they were really
old, to be so recorded or documented at
any time. On the contrary the entry of the
pond on the land has continued.

12. We are of the opinion that the
plea that constructions are old has been
taken only to avoid the demolition of the
unauthorised constructions over the pond.
There is no substance in the plea.

13. Before parting with the case, we
may observe that the Division Bench of
this Court in PIL No.63380 of 2012, Prem
Singh v. State of U.P. & Ors. has also
issued directions in this regard as
follows:-

"After the judgement of the Supreme
Court in the case of Jagpal Singh and
others vs. State of Punjab and others,
reported in AIR 2011 SC 1123 followed
by some other judgments, upon directions
of this Court, the Commissioner-cumSecretary, Board of Revenue, U.P.
Lucknow has issued a circular dated 4th
October, 2012. Para-1 of that circular
simply refers to certain directions of this
Court in a writ petition bearing number
6472 (M/B) of 2012 (Om Prakash Verma
& Others vs. State of U.P. and others)
and judgements of the Apex Court
including that in the case of Jagpal
Singh's case (supra), but Para-2 is
1 All] Smt. Rama Gangwar And Others Vs. Shanker Lal And Others.
215
relevant for the purpose. The same runs
as hereunder:-

"bl lEcU/k esa eq>sa ;g dgus dk funs'k gqvk
gS]
fd
xzke
lHkkvksa
dh
Hkwfe
ij
rkykc@iks[kj@pkjkxkg ,oa dfczLrku ij voS/k
dCtk@ vfrdze.k dks gVokus ds lEcU/k esa izeq[k
lfpo] jktLo foHkkx] mRrj izns'k 'kklu dh
v/;{krk esa cgqlnL;h; lfefr dk xBu fd;k x;k
gS 1⁄4Nk;k izfr layXu1⁄2A vr% vuqjks/k gS fd mDr
xfBr lfefr dk izpkj izlkj vius {ks+= ds nSfud
lekpkj i=ksa@dscy pSuyksa ij fu;fer vk/kkj ij
djkuk lqfuf'pr djsa] rFkk vius vius e.My @
tuin ds leLr xzke lHkkvksa ds lnL;ksa ls voS/k
dCtk @vfrdze.k dh f'kdk;rsa izkIr dj le;c)
:i ls tkWp dh dk;Zokgh lqfuf'pr dj d`r
dk;Zokgh dh izxfr ls vius e.Myk;qDr ds ek/;e
ls ifj"kn dks ikf{kd :i ls miyC/k djkuk
lqfuf'pr djsa "

We have noticed that large number
of similar writ petitions are being filed
only for enforcement of law laid down in
the case of Jagpal Singh (supra) and
some subsequent judgements.

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.

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.

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.

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.

The petition is, accordingly, disposed
of."

14. In this case on the admitted
position that the petitioner has encroached
upon the land recorded as pond, which were
verified on the spot inspection by the ADM
(F & R), Jaunpur on 8.2.2010, such
constructions must be demolished and the
pond restored to the villagers.

15. The writ petition is dismissed.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.02.2013

BEFORE
THE HON'BLE SIBGHAT ULLAH KHAN,J.

Civil Misc. Writ Petition No. 5393 of 2013

Smt. Rama Gangwar And Others...Petitioner
Versus
Shanker Lal And Others ...Respondents

Counsel for the Petitioner:
Dr. G.S.D. Mishra, Sri Balendra Prata Singh