REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1132 /2011 @ SLP(C) No.3109/2011
(Arising out of Special Leave Petition (Civil) CC No. 19869 of 2010)
Jagpal Singh & Ors. .. Appellant (s)
-versus-
State of Punjab & Ors. .. Respondent (s)
JUDGMENT
Markandey Katju, J.
1. Leave granted.
2. Heard learned counsel for the appellants.
3. Since time immemorial there have been common lands inhering in the
village communities in India, variously called gram sabha land, gram
panchayat land, (in many North Indian States), shamlat deh (in Punjab etc.),
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mandaveli and poramboke land (in South India), Kalam, Maidan, etc.,
depending on the nature of user. These public utility lands in the villages
were for centuries used for the common benefit of the villagers of the village
such as ponds for various purposes e.g. for their cattle to drink and bathe, for
storing their harvested grain, as grazing ground for the cattle, threshing
floor, maidan for playing by children, carnivals, circuses, ramlila, cart
stands, water bodies, passages, cremation ground or graveyards, etc. These
lands stood vested through local laws in the State, which handed over their
management to Gram Sabhas/Gram Panchayats. They were generally
treated as inalienable in order that their status as community land be
preserved. There were no doubt some exceptions to this rule which
permitted the Gram Sabha/Gram Panchayat to lease out some of this land to
landless labourers and members of the scheduled castes/tribes, but this was
only to be done in exceptional cases.
4. The protection of commons rights of the villagers were so zealously
protected that some legislation expressly mentioned that even the vesting of
the property with the State did not mean that the common rights of villagers
were lost by such vesting. Thus, in Chigurupati Venkata Subbayya vs.
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Paladuge Anjayya, 1972(1) SCC 521 (529) this Court observed :
"It is true that the suit lands in view of Section 3 of
the Estates Abolition Act did vest in the Government.
That by itself does not mean that the rights of the
community over it were taken away. Our attention has
not been invited to any provision of law under which the
rights of the community over those lands can be said to
have been taken away. The rights of the community over
the suit lands were not created by the landholder. Hence
those rights cannot be said to have been abrogated by
Section 3) of the Estates Abolition Act."
5. What we have witnessed since Independence, however, is that in large
parts of the country this common village land has been grabbed by
unscrupulous persons using muscle power, money power or political clout,
and in many States now there is not an inch of such land left for the common
use of the people of the village, though it may exist on paper. People with
power and pelf operating in villages all over India systematically encroached
upon communal lands and put them to uses totally inconsistent with its
original character, for personal aggrandizement at the cost of the village
community. This was done with active connivance of the State authorities
and local powerful vested interests and goondas. This appeal is a glaring
example of this lamentable state of affairs.
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6. This appeal has been filed against the impugned judgment of a
Division Bench of the Punjab and Haryana High Court dated 21.5.2010. By
that judgment the Division Bench upheld the judgment of the learned Single
Judge of the High Court dated 10.2.2010.
7. It is undisputed that the appellants herein are neither the owner nor the
tenants of the land in question which is recorded as a pond situated in village
Rohar Jagir, Tehsil and District Patiala. They are in fact trespassers and
unauthorized occupants of the land relating Khewat Khatuni No. 115/310,
Khasra No. 369 (84-4) in the said village. They appear to have filled in the
village pond and made constructions thereon.
8. The Gram Panchayat, Rohar Jagir filed an application under Section
7 of the Punjab Village Common Lands (Regulation) Act, 1961 to evict the
appellants herein who had unauthorizedly occupied the aforesaid land. In its
petition the Gram Panchayat, Rohar Jagir alleged that the land in question
belongs to the Gram Panchayat, Rohar as is clear from the revenue records.
However, the respondents (appellants herein) forcibly occupied the said land
and started making constructions thereon illegally. An application was
consequently moved before the Deputy Commissioner informing him about
the illegal acts of the respondents (appellants herein) and stating that the
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aforesaid land is recorded in the revenue records as Gair Mumkin Toba i.e. a
village pond. The villagers have been using the same, since drain water of
the village falls into the pond, and it is used by the cattle of the village for
drinking and bathing. Since the respondents (appellants herein) illegally
occupied the said land an FIR was filed against them but to no avail. It was
alleged that the respondents (appellants herein) have illegally raised
constructions on the said land, and the lower officials of the department and
even the Gram Panchayat colluded with them.
9. Instead of ordering the eviction of these unauthorized occupants, the
Collector, Patiala surprisingly held that it would not be in the public interest
to dispossess them, and instead directed the Gram Panchayat, Rohar to
recover the cost of the land as per the Collector's rates from the respondents
(appellants herein). Thus, the Collector colluded in regularizing this
illegality on the ground that the respondents (appellants herein) have spent
huge money on constructing houses on the said land.
10. Some persons then appealed to the learned Commissioner against the
said order of the Collector dated 13.9.2005 and this appeal was allowed on
12.12.2007. The Learned Commissioner held that it was clear that the Gram
Panchayat was colluding with these respondents (appellants herein), and it
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had not even opposed the order passed by the Collector in which directions
were issued to the Gram Panchayat to transfer the property to these persons,
nor filed an appeal against the Collector's order.
11. The learned Commissioner held that the village pond has been used
for the common purpose of the villagers and cannot be allowed to be
encroached upon by any private respondents, whether Jagirdars or anybody
else. Photographs submitted before the learned Commissioner showed that
recent attempts had been made to encroach into the village pond by filling it
up with earth and making new constructions thereon. The matter had gone
to the officials for removal of these illegal constructions, but no action was
taken for reasons best known to the authorities at that time. The learned
Commissioner was of the view that regularizing such kind of illegal
encroachment is not in the interest of the Gram Panchayat. The learned
Commissioner held that Khasra No. 369 (84-4) is a part of the village pond,
and the respondents (appellants herein) illegally constructed their houses at
the site without any jurisdiction and without even any resolution of the Gram
Panchayat.
12. Against the order of the learned Commissioner a Writ Petition was
filed before the learned Single Judge of the High Court which was dismissed
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by the judgment dated 10.2.2010, and the judgment of learned Single Judge
has been affirmed in appeal by the Division Bench of the High Court.
Hence this appeal.
13. We find no merit in this appeal. The appellants herein were
trespassers who illegally encroached on to the Gram Panchayat land by
using muscle power/money power and in collusion with the officials and
even with the Gram Panchayat. We are of the opinion that such kind of
blatant illegalities must not be condoned. Even if the appellants have built
houses on the land in question they must be ordered to remove their
constructions, and possession of the land in question must be handed back to
the Gram Panchayat. Regularizing such illegalities must not be permitted
because it is Gram Sabha land which must be kept for the common use of
villagers of the village. The letter dated 26.9.2007 of the Government of
Punjab permitting regularization of possession of these unauthorized
occupants is not valid. We are of the opinion that such letters are wholly
illegal and without jurisdiction. In our opinion such illegalities cannot be
regularized. We cannot allow the common interest of the villagers to suffer
merely because the unauthorized occupation has subsisted for many years.
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14. In M.I. Builders (P) Ltd. vs. Radhey Shyam Sahu, 1999(6) SCC
464 the Supreme Court ordered restoration of a park after demolition of a
shopping complex constructed at the cost of over Rs.100 crores. In Friends
Colony Development Committee vs. State of Orissa, 2004 (8) SCC 733
this Court held that even where the law permits compounding of
unsanctioned constructions, such compounding should only be by way of an
exception. In our opinion this decision will apply with even greater force in
cases of encroachment of village common land. Ordinarily, compounding in
such cases should only be allowed where the land has been leased to
landless labourers or members of Scheduled Castes/Scheduled Tribes, or the
land is actually being used for a public purpose of the village e.g. running a
school for the villagers, or a dispensary for them.
15. In many states Government orders have been issued by the State
Government permitting allotment of Gram Sabha land to private persons and
commercial enterprises on payment of some money. In our opinion all such
Government orders are illegal, and should be ignored.
16. The present is a case of land recorded as a village pond. This Court in
Hinch Lal Tiwari vs. Kamala Devi, AIR 2001 SC 3215 (followed by the
Madras High Court in L. Krishnan vs. State of Tamil Nadu, 2005(4)
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CTC 1 Madras) held that land recorded as a pond must not be allowed to be
allotted to anybody for construction of a house or any allied purpose. The
Court ordered the respondents to vacate the land they had illegally occupied,
after taking away the material of the house. We pass a similar order in this
case.
17. In this connection we wish to say that our ancestors were not fools.
They knew that in certain years there may be droughts or water shortages for
some other reason, and water was also required for cattle to drink and bathe
in etc. Hence they built a pond attached to every village, a tank attached to
every temple, etc. These were their traditional rain water harvesting
methods, which served them for thousands of years.
18. Over the last few decades, however, most of these ponds in our
country have been filled with earth and built upon by greedy people, thus
destroying their original character. This has contributed to the water
shortages in the country.
19. Also, many ponds are auctioned off at throw away prices to
businessmen for fisheries in collusion with authorities/Gram Panchayat
officials, and even this money collected from these so called auctions are not
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used for the common benefit of the villagers but misappropriated by certain
individuals. The time has come when these malpractices must stop.
20. In Uttar Pradesh the U.P. Consolidation of Holdings Act, 1954 was
widely misused to usurp Gram Sabha lands either with connivance of the
Consolidation Authorities, or by forging orders purported to have been
passed by Consolidation Officers in the long past so that they may not be
compared with the original revenue record showing the land as Gram Sabha
land, as these revenue records had been weeded out. Similar may have been
the practice in other States. The time has now come to review all these
orders by which the common village land has been grabbed by such
fraudulent practices.
21. For the reasons given above there is no merit in this appeal and it is
dismissed.
22. 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
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this purpose the Chief Secretaries of all State Governments/Union
Territories in India are directed to do the needful, taking the help of other
senior officers of the Governments. The said scheme should provide for the
speedy eviction of such illegal occupant, after giving him a show cause
notice and a brief hearing. Long duration of such illegal occupation or huge
expenditure in making constructions thereon or political connections must
not be treated as a justification for condoning this illegal act or for
regularizing the illegal possession. Regularization should only be permitted
in exceptional cases e.g. where lease has been granted under some
Government notification to landless labourers or members of Scheduled
Castes/Scheduled Tribes, or where there is already a school, dispensary or
other public utility on the land.
23. Let a copy of this order be sent to all Chief Secretaries of all States
and Union Territories in India who will ensure strict and prompt compliance
of this order and submit compliance reports to this Court from time to time.
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24. Although we have dismissed this appeal, it shall be listed before this
Court from time to time (on dates fixed by us), so that we can monitor
implementation of our directions herein. List again before us on 3.5.2011
on which date all Chief Secretaries in India will submit their reports.
.............................J.
[Markandey Katju]
.............................J.
[Gyan Sudha Mishra]
New Delhi;
January 28, 2011
