# Pachchu v. State of U.P. & Ors

- **Citation:** (2021) 9 ILRA 1323
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-15
- **Case number:** Writ C No. 9218 of 2016
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pachchu-v-state-of-u-p-ors-47520
- **Pages:** 7

## Headnote

Civil Law - U.P. Z.A.&L.R. Act,1950 -
Sections 176 & 202 - Ejectment of asami -
Illegal encroachment over pond (Talab) -
disputed parcel of land a pond area -
1324 INDIAN LAW REPORTS ALLAHABAD SERIES
Petitioner an Asami pattedar - term of the
Asami
Patta
granted
to
the
petitioner/predecessor-in-interest of the
petitioner long expired - after expiration
of the period of Patta and its non renewal,
the petitioner does not have any right to
retain
possession
over
the
land
-
Petitioner found to be in illegal occupation
and his eviction was rightly ordered from
the disputed parcel of land recorded under
category 3 in the Khatauni i.e., land
belonging to the Gaon Sabha - District
Magistrate directed to forthwith resume
possession over the disputed parcels of
land and restore the pond to its original
pristine stage (Para 12, 20)

Dismissed. (E-5)

List of Cases cited :

## Text

9 All Pachchu Vs. State of U.P. & Ors.
1323
in the record. The cases in point discussed
in the preceding paragraphs are applicable
to the facts of the case. The learned
appellate court while rejecting the delay
condonation application has acted contrary
to the aforesaid settled authorities of law.

24. The learned appellate authority
overlooked the fact that substantive rights
of the petitioner are engaged in this
controversy which need adjudication on
merits in the interest of justice.

25. I find that the court below has
taken a pedantic view of the matter which
has led to a miscarriage of justice.

26. The order dated 27.01.2021
passed by the respondent No.2 as well as
the order dated 25.10.2018 passed by the
respondent No.3 are arbitrary and illegal.

27. The order dated 27.01.2021
passed by the respondent No.2-Additional
District Magistrate (Judicial), Jhansi as
well as the order dated 25.10.2018 passed
by the respondent No.3/Assistant Collector,
First Class/Tehsildar-Moth, District-Jhansi
are liable to be set aside and are set aside.

28. The delay condonation application
is liable to be allowed and is allowed.

29. The matter is remitted to
respondent No.2 / appellate authority.

30. A writ in the nature of mandamus
commanding
the
respondent
No.2
/
appellate authority to execute the following
directions:

I.
The
respondent
No.2-
/
appellate authority shall decide the appeal
on merits preferably in accordance with
law within a period of four months from
the date of production of a computer
generated copy of this order, downloaded
from the official website of the High Court
Allahabad. The Authority/Official shall
verify
the
authenticity
of
such
computerized copy of the order from the
official website of High Court Allahabad
and shall make a declaration of such
verification in writing.

31. This order is being passed when
the threat of Covid-19 pandemic still exists.
In case the court proceedings are held up
due to Covid-19 outbreak, the lost working
days shall be adjusted and the stipulated
period of one year shall accordingly be
enhanced.

32. The writ petition is allowed to the
extent indicated above.
----------
(2021)09ILR A1323
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.09.2021

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ C No. 9218 of 2016

Pachchu ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ajay Kumar Srivastava, Sri Sanjay Kr.
Srivastava

Counsel for the Respondents:
C.S.C., Sri Brij Kumar Yadav, Sri Saurabh
Srivastava, Sri Sharad Chand Rai

Civil Law - U.P. Z.A.&L.R. Act,1950 -
Sections 176 & 202 - Ejectment of asami -
Illegal encroachment over pond (Talab) -
disputed parcel of land a pond area -
1324 INDIAN LAW REPORTS ALLAHABAD SERIES
Petitioner an Asami pattedar - term of the
Asami
Patta
granted
to
the
petitioner/predecessor-in-interest of the
petitioner long expired - after expiration
of the period of Patta and its non renewal,
the petitioner does not have any right to
retain
possession
over
the
land
-
Petitioner found to be in illegal occupation
and his eviction was rightly ordered from
the disputed parcel of land recorded under
category 3 in the Khatauni i.e., land
belonging to the Gaon Sabha - District
Magistrate directed to forthwith resume
possession over the disputed parcels of
land and restore the pond to its original
pristine stage (Para 12, 20)

Dismissed. (E-5)

List of Cases cited :

1. Hinch Lal Tiwari Vs Kamla Devi & ors. (2001)
6 SCC 496

2. Jagpal Singh Vs St. of Punj. (2011) 11 SCC
396

3. Prem Singh Vs St. of U.P. & ors. 2012 (11)
ADJ 404

(Delivered by Hon'ble Ajay Bhanot, J.)

1. 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.

2. 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.

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

4. 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.

5. The aforesaid entry was examined
and
upheld
in
the
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.

6. 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.

7. 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.
9 All Pachchu Vs. State of U.P. & Ors.
1325

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

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

Part-I

(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.

-----

-----

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

(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;

(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;

(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;

(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;

(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."

9. 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:

"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-

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

[(b) that he-

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

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

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,]
1326 INDIAN LAW REPORTS ALLAHABAD SERIES

(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,

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

(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.

(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-

(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

(ii) the disability has determined,

(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;

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

10. 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 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.

11. 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.

12. 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.

13. Before parting, this Court would
like to examine the importance of ponds as
9 All Pachchu Vs. State of U.P. & Ors.
1327
part of ecological heritage of an area.
Water bodies like ponds are natural
resources that comprise the collective
wealth of the local population as 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.

14. 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.

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

16. 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:

"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 sites.

14.
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."

17. 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
1328 INDIAN LAW REPORTS ALLAHABAD SERIES
(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:

"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.

20. 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. 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.

21. 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.

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

23. 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."

18. Similarly, the Division Bench of
this Court in the case of Prem Singh v.
9 All Smt. Babita Devi Vs. State of U.P. & Ors.
1329
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:

"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.

6. 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.

7. 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.

8. 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."

19. 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.

20. 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 months from
today.

21. Learned Standing Counsel to
serve a copy of this order upon the District
Magistrate, Kanpur Dehat, for compliance.
----------
(2021)09ILR A1329
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.07.2021

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE MRS. SADHNA RANI
(THAKUR), J.

Writ C No. 14093 of 2021

Smt. Babita Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Gaurav Singh Chauhan, R.P.S. Chauhan

Counsel for the Respondents:
C.S.C., Tarun Agarwal

A. U.P. Kshetra Panchayats and Zila
Panchayats (Election of Members) Rules,
1994 - Rule 54 - Minor correction in
totaling of the votes - Jurisdiction of the
Returning Officer to make correction in
the election result after victory certificate
is issued - Procedural review - functus
Officio - Held - Returning Officer has
jurisdiction to correct minor errors of
clerical/arithmetical nature - Returning
Officer
on
discovering
mistake
in
calculation/totaling of the votes must