# Support India Welfare Society v. State of U.P. & Ors

- **Citation:** (2019) 3 ILRA 667
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-16
- **Bench:** Pradeep Kumar Singh Baghel, Piyush Agrawal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/support-india-welfare-society-v-state-of-u-p-ors-44938
- **Pages:** 15

## Headnote

A. Public Interest Litigation-Article 226
of the Constitution- Doctrine of the
Public Trust-public has a right to expect
certain lands and natural areas to retain
their
natural
characteristic-certain
cmmon
properties
such
as
rivers,seashore,forests and the air were
held by Government in trusteeship for
the free and unimpeded use of the
general public-the roman law provides
that the natural resources were either
owned by no one(res nullious) or by
everone in common (res communious).
(Para 29)

B.
Illegal
encroachments
over
pond(Pokhar) by the land mafias in
collusion with the local officials-no
effective step was taken for the removal
of the encroachment-State functionaries
have not complied with the directions of
the Supreme Court in this regard-the
District Magistrate is directed to issue
the
necessary
directions
for
the
restoration of the pond. (Para 2, 6,8 to 37)

C. Constitution of India-Article 48-A of the
Constitution provides that the State shall
endeavour to protect and improve the
environment and to safeguard the forests
and wildlife of the country-Article 51-A(g) is
provides one of the fundamental duties to
protect
and
improve
the
natural
environment-these two articles have to be
considered in the light of Article 21. (Para 30)

PIL disposed off (E-6)
List of cases cited:

## Text

_Characters 0–39,990 of 48,026. This is a partial read: ask again with offset=39990 for what follows._

3 All. Shri Prateek Agarwal Vs. Smt. Richa Garg
667
Order VIII, Rule 10 C.P.C. is only
consequential, therefore, we are clearly of
the view that appeal is not maintainable.

18. Even otherwise, on merits, we
do not find that the view taken by Court
below is erroneous, inasmuch as, in
family disputes, when divorce petition is
filed by husband and on the first date
fixed for written statement, wife comes
with the complaint that she needs
financial assistance and seeks time to
enforce her rights of interim maintenance
under Section 24 of Act, 1955, so long as
this application is not decided, it cannot
be said that wife was under an obligation
to file written statement even though had
financial crisis to contest the case. The
view, therefore, taken by Court below that
for the purpose of Order VIII Rule 10
C.P.C., in the facts of this case, time
lapsed between the date when application
under Section 24 of Act, 1955 was
allowed and date on which written
statement was filed, should be taken,
which is only 67 days it cannot be said
that there was non compliance of filing
written
statement
within
time
by
respondent-wife.

19. It is however contended that written
statement was filed on 24.10.2018 without
seeking permission of Court and therefore
Order VIII Rule 1 providing only 30 days'
time will apply and not 90 days' time.

20. In this regard we are of the view
that no formal application for this purpose
is necessary. If Trial Court accepted
written statement when it is filed, it can
be treated as if it has granted permission.
Any specific procedure for this purpose
neither has been prescribed nor need be
introduced
considering
nature
of
proceedings. When a written statement is
accepted by Trial Court, it results in
allowing parties to contest the matter on
merits instead of going to decide the
matter ex parte.

21. In Sangram Singh vs. Election
Tribunal Kotah and others AIR 1955
SC 425 Court said that procedure of trial
is made for the purpose of deciding a
dispute in compliance of principles of
natural justice and no technical view
should be taken for such procedure.

22. Therefore, whenever statutory
provisions in respect of procedure are to be
considered, such view has to be taken
which advances an adjudication on merits
after hearing both the parties instead of ex
parte decision. No person has a vested
interest and right to seek adjudication of a
dispute ex parte by taking advantage of any
technical fault or issue. Courts must follow
a procedure which, as much as possible,
consistent
with
statutory
provisions,
principles of natural justice and leans in
favour of a decision on merits after contest
instead of ex parte decision.

23. In view of above discussion,
appeal is dismissed as not maintainable as
well as on the ground of involving no
arguable issue at the stage of hearing
under Order 41, Rule 11 C.P.C.

24. Interim order, granted on
26.6.2019, stands discharged.
----------

(2019)11ILR A667

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.09.2019

BEFORE
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.
668 INDIAN LAW REPORTS ALLAHABAD SERIES
THE HON'BLE PIYUSH AGRAWAL, J.
PIL No. 1474 OF 2019

Support India Welfare Society
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shree Prakash Giri

Counsel for the Respondents:
C.S.C., Sri Shyam Mani Shukla, Sri Suresh
C. Dwivedi

A. Public Interest Litigation-Article 226
of the Constitution- Doctrine of the
Public Trust-public has a right to expect
certain lands and natural areas to retain
their
natural
characteristic-certain
cmmon
properties
such
as
rivers,seashore,forests and the air were
held by Government in trusteeship for
the free and unimpeded use of the
general public-the roman law provides
that the natural resources were either
owned by no one(res nullious) or by
everone in common (res communious).
(Para 29)

B.
Illegal
encroachments
over
pond(Pokhar) by the land mafias in
collusion with the local officials-no
effective step was taken for the removal
of the encroachment-State functionaries
have not complied with the directions of
the Supreme Court in this regard-the
District Magistrate is directed to issue
the
necessary
directions
for
the
restoration of the pond. (Para 2, 6,8 to 37)

C. Constitution of India-Article 48-A of the
Constitution provides that the State shall
endeavour to protect and improve the
environment and to safeguard the forests
and wildlife of the country-Article 51-A(g) is
provides one of the fundamental duties to
protect
and
improve
the
natural
environment-these two articles have to be
considered in the light of Article 21. (Para 30)

PIL disposed off (E-6)
List of cases cited:

1. Hinch Lal Tiwari Vs. Kamala Devi & Ors.
(2001) 6 SCC 496
2. Jagpal Singh & Ors. Vs. State of Punjab &
Ors.AIR 2011 SC 1123

3. Jagat Narain And Ors. Vs. State of U.P. And
Ors.2015(3) ADJ 466 (DB)

4. P.S. Shisodia Vs. Board of Revenue
Alld.2008(1) R.D. 15

5. State of Orissa Vs. Government of
India(2009) 5 SCC 492

6. Meghwal Samaj Shiksha Samiti Vs. Lakh
Singh (2011) 11 SCC 800

7. L. Krishnan Vs. State of Tamil Nadu2005(4)
CTC 1 (Madras)

8. Ram Kumar Vs. Zila Adhikari/District
D.D.C.,2002 (2) AWC 1577

9. Shardadeen Vs. State of U.P. (2005) 1 AWC
919

10. Iqbal Ahmad and Ors Vs. D.D.C.,Deoria
and Ors (2005) 98 RD 580

11. Ram Naumee Vs. State of U.P. & Ors
(2011) 5 All LJ 721

12. Prem Singh Vs. State of U.P. and
Ors.(2012) 11 ADJ 404 (DB)

13. Karnataka Housing Board Vs. C. Muddaiah,
(2007) 7 SCC 689

14. M.C. Mehta Vs. Union of India (2006) 3
SCC 399

15. N. Kannadasan Vs. Ajoy Khose (2009) 3
SCC (Civ) 1

16. Lal Bahadur Vs. State of U.P. (2018) 15
SCC 407

(Delivered by Hon'ble.Pradeep Kumar
Singh Baghel, J. &
Hon'ble Piyush Agrawal, J.)
3 All. Support India Welfare Society Vs. State of U.P. & Ors.
669

1. This Public Interest Litigation
(PIL) has been instituted by the petitioner,
who claims to be the Chairman of the
Legal Cell of the registered Society,
"Support India Welfare Society". One of
the objects of the Society is to take up the
cause of public importance for its
redressal for the marginal sections of the
society.

2. The grievance raised in this
Public Interest Litigation is in respect of
illegal encroachments over pond over Plot
Nos. 253 & 254 situated at Village -
Rajpur, Tehsil & District - Agra by the
land mafias in collusion with the local
officials. The said plots are intended to be
used for the construction of multi-storey
building by the powerful and influential
persons of the city. It is stated that in the
District - Agra, the land mafias are
indulged in encroachments of the public
utility land, particularly, ponds/water
bodies. The petitioner has brought on the
record a copy of the revenue record to
demonstrate that Plot Nos. 253 & 254 are
recorded as pond (Pokhar).

3. It is stated that the petitioner had
made several representations to the
concerned authorities and when no action
was taken, the petitioner filed Public
Interest Litigation No. 4502 of 2018,
which was disposed of by this Court vide
order dated 4th October, 2018, directing
the District Magistrate, Agra to take
appropriate action, in accordance with
law.

4. Pursuant to the order of this
Court, the petitioner submitted a detailed
representation on 22/27th October, 2018
before the District Magistrate, Agra. The
District Magistrate, Agra directed to
conduct an inquiry and it was found that
Plot Nos. 253 area 0.1150 hectare has
been encroached upon by the RCL Public
School and a direction was issued to the
Nagar Nigam, Agra for the removal of the
encroachment and to restore the pond. It
is stated that in spite of the order of the
District Magistrate, Agra dated 6th May,
2019, no effective step has been taken for
the removal of the encroachment. The
petitioner has brought on the record some
of the documents to indicate that the
encroachment still exist.

5. We have heard learned counsel
for the petitioner and learned standing
counsel for the State.

6. The learned counsel for the
petitioner submits that the Supreme
Court, in a large number of judgements,
has issued directions to all the Chief
Secretaries of the States for removal of
the encroachments from the water bodies.
Learned counsel for the petitioner has
placed reliance on the judgment in the
case of Hinch Lal Tiwari Vs. Kamala
Devi & Others, Jagpal Singh & Ors.
Vs. State of Punjab & Ors., Jagat
Narain And Others Vs. State of U.P.
And Others, and P.S. Shisodia Vs.
Board of Revenue Alld..

7. This Court also, following the
judgements of the Supreme Court, has
issued directions to the authorities for the
compliance of the judgements of the
Supreme Court.

8. It is apposite at this stage to set
out the relevant statutory provisions
contained in Uttar Pradesh Zamindari
Abolition & Land Reforms Act, 1950 and
the executive orders, which deals with the
Ponds/water bodies in this state.
670 INDIAN LAW REPORTS ALLAHABAD SERIES

"Section 4: Vesting of estates in
the State:- (1) As soon as may be after the
commencement of this Act the State
Government may, by notification, declare
that as from a date to be specified, all
estates situate in Uttar Pradesh shall vest
in the State and, as from the beginning of
the date so specified (hereinafter called
the date of vesting), all such estates shall
stand transferred to and vest, except as
hereinafter provided, in the State free
from all encumbrances.

(2) It shall be lawful for the
State Government, if it so considers
necessary, to issue, from time to time, the
notification referred to in sub-section (1)
in respect only of such area or areas as
may be specified and all the provisions of
sub-section (1) shall be applicable to and
in the case of every such notification.

117. Vesting of certain lands,
etc. in Gaon Sabhas and other local
authorities.-

1) At any time after the
publication of the notification referred to
in Section 4, the State Government may,
[by general or special order to be
published in the manner prescribed,]
declare that as from a date to be specified
in this behalf, all or any of the following
things, namely-

(i) lands, whether cultivable or
otherwise, except lands for the time being
comprised in any holding or grove,

(ii) forests,

(iii) trees, other than trees in a
holding on the boundary of a holding or
in a grove or abadi,

(iv) fisheries,

(v) hats, bazars and melas,
except hats, bazars and melas held on
lands to which the provisions of clauses
(a) to (c) of sub-section (1) of Section 18
apply or on sites and areas referred to in
Section 9, and

(vi)
tanks,
ponds,
private
ferries, water channels, pathways and
abadi sites,-

which had vested in the State
under this Act shall vest in a Gaon Sabha
or any other local authority established
for the whole or part of the village in
which the said things are situate, or
partly in one such local authority
(including a Gaon Sabha) and partly in
another:

Provided that it shall be lawful
for the State Government to make the
declaration aforesaid subject to such
exceptions and conditions as may be
[specified in such order].

(2) Notwithstanding anything
contained in this Act or in any other law
for the time being in force, the State
Government may, 4[by general or special
order to be published in the manner
prescribed,] declare that as from a date
to be specified in this behalf, all or any of
the things specified in clauses (i) to (vi) of
sub-section (1) which after their vesting
in the State under this Act had been
vested in a Gaon Sabha or any other local
authority, either under this Act or under
Section 126 of the Uttar Pradesh Nagar
Mahapalika Adhiniyam, 1959, shall vest
in any other local authority (including a
Gaon Sabha) established for the whole or
part of the village in which the said things
are situate.

(3) Where any declaration has
been made under sub-section (1) or subsection (2) vesting any of the things
specified in clauses (i) to (vi) of subsection (1) in any Gaon Sabha, and the
village or the part of the village in which
that thing is situate lies outside the circle
of the Gaon Sabha, such Gaon Sabha or
its Land Management Committee shall in
3 All. Support India Welfare Society Vs. State of U.P. & Ors.
671
respect of that thing perform, discharge
and exercise the functions, duties and
powers assigned, imposed or conferred by
or under this Act or the U.P. Panchayat
Raj Act, 1947, on a Gaon Sabha or a
Land Management Committee, as the
case may be, as if that village or part of
village also lay within that circle.

(4) Where a declaration has
been made under sub-section (1) or subsection (2) vesting any of the things
specified in clauses (i) to (vi) of subsection (1) in a local authority other than
a Gaon Sabha and the village or the part
of village in which the thing is situate is
outside the limits of such local authority,
or where after any declaration is made
under sub-section (1) or sub-section (2),
the thing vests or, as the case may be, had
vested in a Nagar Mahapalika under
Section 126 of the Uttar Pradesh Nagar
Mahapalika Adhiniyam, 1959, such local
authority shall in respect of that thing
perform, discharge and exercise the
functions, duties and powers assigned,
imposed or conferred by or under this Act
or the U.P. Panchayat Raj Act, 1947, on a
Gaon Sabha or Land Management
Committee:

Provided
that
the
local
authority shall in the performance,
discharge and exercise of its functions,
duties and powers under this sub-section
follow such procedure as may be
prescribed.

(5) Where any of the things
specified in clauses (i) to (vi) of subsection (1) is vested in a local authority
other than a Gaon Sabha the provisions
of Sections 126 and 127 shall, subject to
such exceptions and modifications, if any,
as the State Government may specify in
this behalf [by general or special order to
be published in the manner prescribed]
apply, mutatis mutandis, to such local
authority.

(6) The State Government may
at any time, [by general or special order
to
be
published
in
the
manner
prescribed],
amend
or
cancel
any
[declaration, notification or order] made
in respect of any of the things aforesaid,
whether generally or in the case of any
Gaon Sabha or other local authority, and
resume such thing, and whenever the
State Government so resumes any such
things, the Gaon Sabha or other local
authority, as the case may be, shall be
entitled
to
receive
and
be
paid
compensation on account only of the
development, if any, effected by it in or
over that things:

Provided
that
the
State
Government may after such resumption
make a fresh declaration under subsection (1) or sub-section (2) vesting the
thing resumed in the same or any other
local authority including a Gaon Sabha),
and the provisions of sub-sections (3), (4)
and (5), as the case may be, shall mutatis
mutandis, apply to such declaration."

9. Regard being had to the fact that
the Commissioner - cum - Secretary of
Board of Revenue, U.P. has issued a
circular dated 4th October, 2012. In
compliance of the Judgements of the
supreme Court and with reference to of
this court in

The relevant part of the circular
reads as under:

"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
672 INDIAN LAW REPORTS ALLAHABAD SERIES
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 "

10. As can be seen from the above
statutory provisions, it is legislative intent
to protect the water bodies as they are
necessary to maintain the environmental
balance.

The
growing
population
and
unrestricted water extraction has resulted
serious consequences for human life. The
Central and the State Governments have
floated several schemes for ground water
recharge.

11. A survey of the law on their
subject would be necessary and can be
started with- Hinch Lal Tiwari (supra).
This case arose from a judgement of this
Court. The Supreme Court elaborately
considered the relevant provisions of the
Uttar Pradesh Zaimindari Abolition &
Land Reforms Act, 1950 and held as
under:-

"8. A perusal of the provision
extracted above makes it clear that tanks,
ponds, private ferries, water channels,
pathways and abadi sites which had
vested in the State under Section 4 of the
Act shall vest in the Gaon Sabha or any
other local authority established for the
whole or any part of the village in which
the said things are situate, or partly in
one such local authority and partly in
another, from the date specified in the
notification issued by the Government in
this behalf. Section 122-C authorises the
Assistant Collector, in charge of the subdivision to earmark the classes of land
noted hereunder either on his own motion
or on the resolution of the Land
Management Committee, for the members
of
the
Scheduled
Castes
and
the
Scheduled
Tribes
and
agricultural
labourers and village artisans. It would
be apt to refer to clause (a) of sub-section
(1) of Section 122-C which reads as
follows :

"122-C. Allotment of land
for housing site for members of Scheduled
Castes, agricultural labourers etc. - (1)
The Assistant Collector in charge of the
sub-division of his own motion or on the
resolution of the Land Management
Committee, may earmark any of the
following classes of land for the provision
of abadi sites for the members of the
Scheduled Castes and the Scheduled
Tribes and agricultural labourers and
village artisans -

(a) lands referred to in
clause (i) of sub-section (1) of Section
117 and vested in the Gaon Sabha under
that section;"

And the said clause (i) runs as
follows :

" 117. (1)(i) lands, whether
cultivable or otherwise, except lands for
the time being comprised in any holding
or grove,"

9. The term" land" is defined in
Section 3, sub-section (14) to mean land
held or occupied for purposes connected
with agriculture, horticulture or animal
husbandry which includes pisciculture
and poultry farming. The definition
excludes land dealt with in Sections 109,
143, 144 and Chapter 7. We may note that
we are not concerned with the excepted
categories. From a combined reading of
the provisions aforementioned, it is plain
that the subject-matter of allotment of
house sites is lands referred to in clause
(i) of sub-section (1) and not tanks,
3 All. Support India Welfare Society Vs. State of U.P. & Ors.
673
ponds, private ferries, water channels,
pathways referred to in clause (vi) of subsection (1) of Section 117 of the Act. It
appears to us that due to inappropriate
drafting the expression "and abadi sites"
is wrongly placed in clause (vi).

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."

12. In State of Orissa Vs.
Government of India, considering the
importance of water, it has been observed
that "the right to get water is a part of
right to life guaranteed by Article 21 of
the Constitution.

13. In Meghwal Samaj Shiksha
Samiti Vs. Lakh Singh, a village pond
land was allotted to an educational
institute. The High Court set aside the
allotment order and held that pond land
can not be allotted for any other purpose.
The matter was carried to the Supreme
Court. The Court, following the decision
of Hinch Lal Tiwari (supra), rejected the
plea that land was allotted for other public
purpose, to build a Hostel for students of
backward class.

14. In Jagpal Singh (supra), the
Supreme Court has taken a judicial notice
that since independence, in large part of
the country, unscrupulous persons using
muscle
powers,
money
power
and
political
influence,
they
have
systematically encroached on the public
utility lands. The Court has also observed
that this has been done with the active
connivance with the State - authorities
and local power vested interests and
Gundas. The Court, following its earlier
judgement in Hinch Lal Tiwari (supra),
which has also been followed by the
Madras High Court in L. Krishnan Vs.
State of Tamil Nadu, has further
observed that most of the ponds in the
country have been filled with earth and
their
original
character
has
been
destroyed. The relevant part of the
judgement reads as under:-

"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
674 INDIAN LAW REPORTS ALLAHABAD SERIES
destroying their original character. This
has contributed to the water shortages in
the country.

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.

15. The Court has issued directions
to all the State Governments in the
country
for
the
eviction
of
the
illegal/unauthorized occupants of the
Gram Sabha's land. The directions issued
by the Supreme Court read as under:-

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."

16. This Court also, in a large
number of cases, has considered the
matter relating to ponds. In Ram Kumar
Vs.
Zila
Adhikari/District
Deputy
Director of Cosolidation, this Court has
held as under:-

"22. However, while allotting
the land of Gaon Sabha, it has to be kept
in mind that the land of Gaon Sabha is
basically for public purpose, public in
general and the society has interest in the
public land. Public land should not be
allotted only to serve individual interest,
protection of ponds, tanks, mountains
have been held to be necessary for
environment protection and pollution
control.
Thus,
the
consolidation
authorities while allotting the Gaon
Sabha land should normally desist from
allotting ponds, tanks, mountains, land in
nature of forest"

17. In Shardadeen Vs. State of
U.P., this Court has held as under:-

"8. Ponds are lifelines of
villages. One of the reasons of alarming
3 All. Support India Welfare Society Vs. State of U.P. & Ors.
675
decrease
in
water
level
of
the
underground water particularly during
recent years is drying up of the ponds.
The ponds have become dry either due to
disuse or by active efforts of interested
persons by filling the same with earth.
There are some authorities of this Court
which have held that no person can
mature
his
right
through
adverse
possession over Gaon Sabha land as
under U.P.Z.A. & L.R. Act and the Rules
there is no limitation prescribed for filing
suit by Gaon Sabha for ejectment of
trespasser. In view of this if a person is in
unauthorized occupation of a plot entered
in revenue record as pond or any part
thereof, he cannot mature his title by
prescription however long his possession
may be. In view of the aforesaid Hinch
Lal Tewary authority of Supreme Court
plot entered as pond in the revenue
records even if it has ceased to be a pond
or any portion thereof cannot be allotted
to any person. No authority can pass
order permitting or recording change of
user of pond. In view of this even if a plot
which
was
entered
as
pond after
Zamindari
Abolition
and
vested
in
State/Gaon Sabha or any portion thereof
has been allotted to any person then the
said allotment is void and liable to be
ignored. There is therefore, no legal bar
in cancelling the entry in revenue record
of such plot or any part thereof in favour
of a person after hearing him.

9. It is expected that the
authorities particularly Collectors and
Deputy Collectors will initiate special
drive to get such plots completely vacated
which were entered as ponds belonging to
State/Gaon Sabha just after Zamindari
Abolition and restore the same to their
original position. Let a copy of this order
be given to Shri S.P.Mishra, learned
standing counsel for communication to
authorities concerned."

In Iqbal Ahmad and others Vs.
Deputy
Director
of
Consolidation,
Deoria and others., this Court has held as
under:-

"14. In these circumstances, the
direction of the Apex Court in Hinch Lal
Tiwari v. Kamla Devi (supra) to maintain
Ponds, Water Channels, Pokhras, Garhi
(land covered by water) etc. recorded in
the revenue records on the date of vesting
as covered by under section 132 of the
U.P.Z.A. And L.R. Act be complied
forthwith and land covered by water be
restored and maintained in the interest of
the public in order to maintain ecological
balance and protecting environment. For
this purpose special measures needs to be
taken??? the grass route level so that
directions??? the Apex Court be complied
with Accordingly, State Government is
directed to make a thorough investigation
of
each
village
of
each
District
throughout State of Uttar Pradesh in
respect of Forests, Tanks, Ponds and
Garhi, Water Channel and Riverbed etc.
on the basis of the revenue records of the
date of vesting, i.e., Ist July, 1952 by
constituting a Special Investigation Team
consisting of revenue authorities and
other
concerned
officials
and
Environmentalists and take appropriate
steps for compliance for the Apex Court's
directions in Hinchlal Tiwari v. Kamla
Devi (supra). The State Government of
Uttar Pradesh is also directed to make
compliance of this order within one year
from the date of service of this order to
Standing Counsel/Chief Secretary of
Government of Uttar Pradesh to be
circulated to all the District Magistrates
and Consolidation Authorities of the State
of Uttar Pradesh."
676 INDIAN LAW REPORTS ALLAHABAD SERIES

In Ram Naumee Vs. State of
U.P. & Others, this Court held thus:-

"18. It is apt to consider the
judgment of the Apex Court in Jagpal
Singh v. State of Punjab, JT 2011 (1) SC
617: (2011) 11 SCC 396: AIR 2011 SC
1123. This was a case with respect of a
Village Pond. In that connection, the
Apex
Court
has
made
certain
observations which are relevant for the
present purposes. The Apex Court has
deprecated the action of the State
Authorities either in allotting the public
utility land in favour of a person or in
permitting an encroacher to occupy such
public utility land. It has relied upon its
earlier decision M.I. Builders (P) Ltd. v.
Radhey Shyam Sahu, JT 1999 (5) SC 42;
where
the
Supreme
Court
ordered
restoration of a park after demolition of a
shopping complex constructed at the cost
of over Rs. 100 crores. It has been
observed that the principle laid down in
the said decision of M.I. Builders (P) Ltd.
v. Radhey Shyam Sahu, JT 1999 (5) SC
42: will apply with even greater force in
cases of encroachment of village common
land. In para 15 of the report, the
settlement of such Gaon Sabha land to
private
persons
and
commercial
enterprises on payment of some money
has not been approved and it has been
provided that even if there is general
order in favour of such settlement, the
same should be ignored."

18. A Division Bench of this Court
in Prem Singh Vs. The State of U.P. and
others, taking note of the direction issued
to the Principal Secretary (Revenue),
Government of Uttar Pradesh, has issued
a fresh direction to the State Government
in the following terms:-

"4. 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.

5.
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.

6. 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.

7. 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. "

19. In Prem Singh (supra) case, the
Division Bench has specifically issued a
direction to the Principal Secretary
(Revenue),
Government
of
U.P.,
Lucknow to issue necessary circular to all
the
Commissioners
and
District
Magistrates in the State to ensure
3 All. Support India Welfare Society Vs. State of U.P. & Ors.
677
compliance of the directions issued by the
Supreme Court in Hinch Lal Tiwari
(supra) and Jagpal Singh (supra).

20. Our experience shows that a
large number of Public Interest Litigation
is filed in this Court raising grievance
regarding the illegal encroachments over
the water bodies. In the instant case also,
earlier, the petitioner had approached this
Court for a direction to the District
Magistrate. The number of Public Interest
Litigations, themselves, go to show that in
spite of the judgement of the Supreme
Court in Hinch Lal Tiwari (supra), which
was delivered way back in the year 2001,
no effective steps have been taken by the
State and its functionaries to restore the
ponds in their earlier status and shape.

21. Supreme Court's directions
mentioned above have not received their
due attention by the State functionaries.
The judgement of Hinch Lal Tiwari
(supra) was delivered more than 18 years
back in Jagpal Singh (supra). The
Supreme Court has issued positive
directions to all Chief Secretaries for
restoration of ponds. It is trite that law
declared by the Supreme Court is binding
upon all the authorities under Article 141
of the Constitution.

22. We are constrained to observe
that the decision of the Supreme Court
has not been implemented in the State.
The casual approach adopted by the State
functionaries cannot be appreciated. It is
very disturbing state of affairs. The local
authorities chose to by-pass not only
statutory
provisions,
but
also
the
directions issued by the Supreme Court
and this Court.

23. Relevant, it would be to mention
that rule of law is essence of a democratic
society. In this context, the observations
of the Supreme Court in the cases
mentioned below are apposite.

24. In Karnataka Housing Board v.
C. Muddaiah, it has been held thus:

"32. We are of the considered
opinion that once a direction is issued by
a competent court, it has to be obeyed
and implemented without any reservation.
If an order passed by a court of law is not
complied with or is ignored, there will be
an end of the rule of law. If a party
against whom such order is made has
grievance, the only remedy available to
him is to challenge the order by taking
appropriate proceedings known to law.
But it cannot be made ineffective by not
complying with the directions on a
specious plea that no such directions
could have been issued by the court. In
our
judgment,
upholding
of
such
argument would result in chaos and
confusion and would seriously affect and
impair administration of justice. The
argument of the Board, therefore, has no
force and must be rejected."

25. In M.C. Mehta v. Union of
India, it has been held thus:

"If this Court finds that the
authorities had not taken action required
of them by law and that their inaction is
jeopardising the right to life of the
citizens of this country or any section
thereof, it is the duty of this Court to
intervene. If it is found that the
respondents are flouting the provisions of
law and the directions and orders issued
by the lawful authorities, this Court can
certainly make appropriate directions to
ensure compliance with law and lawful
directions made thereunder."
678 INDIAN LAW REPORTS ALLAHABAD SERIES

26. In N. Kannadasan v. Ajoy
Khose, it has been held thus:

"46.
In
Supreme
Court
Advocates-on-Record Assn.2 this Court
laid down the qualities of a Judge: (SCC
pp. 601-02, para 273):

"273.
...
Under
our
constitutional scheme, the judiciary has
been assigned the onerous task of
safeguarding the fundamental rights of
our citizens and of upholding the rule of
law. Since the Courts are entrusted the
duty to uphold the Constitution and the
laws, it very often comes in conflict with
the State when it tries to enforce its
orders by exacting obedience from
recalcitrant or indifferent State agencies"

51.
In
our
constitutional
scheme, the judge-made law becomes a
part of the Constitution. It has been so
held in M. Nagaraj v. Union of India in
the following terms: (SCC p. 238, para 9).

"9. ... The Constitution,
according to the respondents, is not
merely what it says. It is what the last
interpretation of the relevant provision of
the Constitution given by the Supreme
Court which prevails as a law. The
interpretation placed on the Constitution
by the Court becomes part of the
Constitution and, therefore, it is open to
amendment
under
Article
368.
An
interpretation placed by the Court on any
provision of the Constitution gets inbuilt
in the provisions interpreted. Such
articles are capable of amendment under
Article 368."

27. The Supreme Court in the long
line of decisions has settled that a person
has fundamental right under Article 21 for
a decent life and not an animal existence.
The
decent
life
has
very
wide
connotation. It includes pollution free
environment, clean air and clean water. In
this regard it is apposite to mention the
Article 48-A of the Constitution which
reads as under:

"48A.
Protection
and
improvement
of
environment
and
safeguarding of forests and wild life.--
The State shall endeavour to protect and
improve
the
environment
and
to
safeguard the forests and wild life of the
country."

28. Article 51A of the Constitution
deals with the legal duty of a citizen.

29. In the light of the aforesaid two
Articles the Supreme Court has adopted
the "Doctrine of the Public Trust". The
basic principle of the "Doctrine of the
Public Trust" is that the public has a right
to expect certain lands and natural areas
to retain their natural characteristic is
finding its way into the law of the land.
The doctrine of the public trust has its
origin from the ancient Roman Empire. It
was founded on the ideas that certain
common
properties
such
as
rivers,
seashore, forests and the air were held by
Government in trusteeship for the free
and unimpeded use of the general public.
The
recent
attention
paid
to
the
environment by the higher judiciary in the
country bears a very close conceptual
relationship to this legal doctrine. The
Roman Law provides that the natural
resources were either owned by no one
(res nullious) or by everyone in common
(res communious). The said Roman law
has also been adopted by the English
common law where the sovereign has
power to own the natural resources. But it
does not has power to grant these
properties to private owners if the effect
was to interfere with the public interest.
3 All. Support India Welfare Society Vs. State of U.P. & Ors.
679

30. The Supreme Court recently in
the case of Lal Bahadur Vs. State of
U.P. has considered the violation of
Master Plan on land reserved for green
belt was changed to residential use. The
matter arose from this State. The Court
also
considered
other
environmental
issues and Modern Public Trust Doctrine
and has quoted with approval Joseph
L.Sax, Professor of Law, University of
Michigan-proponent
of
the
Modern
Public Trust Doctrine-in an erudite article
"Public
Trust
Doctrine
in
Natural
Resource
Law:
Effective
Judicial
Intervention".

"22. In M.C. Mehta Vs. Kamal
Nath, it was held that any disturbance to
the basic environment, air or water, and
soil which are necessary for life, would be
hazardous to life within the meaning of
Article 21 of the Constitution. In such
cases "polluter pays principle" can also
be invoked to restore the environment and
to control it. It held: (SCC pp.219-20,
paras 8-10):

"8. Apart from the above
statutes and the rules made thereunder,
Article 48-A of the Constitution provides
that the State shall endeavour to protect
and improve the environment and to
safeguard the forests and wildlife of the
country. One of the fundamental duties of
every citizen as set out in Article 51-A(g)
is to protect and improve the natural
environment, including forests, lakes,
rivers
and
wildlife
and
to
have
compassion for living creatures.