Allahabad High Court
Iqbal Ahamad, Mohammad Ahamad, ... vs Deputy Director Of Consolidation, Gaon ... on 25 February, 2005
Equivalent citations: 2005(3)AWC2423
Author: S.N. Srivastava
Bench: S.N. Srivastava
JUDGMENT S.N. Srivastava, J.
1. This writ petition is directed against the order dated 9.5.2003, passed by the Deputy Director of Consolidation, Deoria allowing the revision of Gaon Sabha setting aside orders of allotment made by subordinate Consolidation Authorities in respect of Plot No. 757 and further quashing order determining valuation and inclusion of Plot No. 757 in petitioners' Chak No. 15.
2. It is borne out from the record that Plot No. 757 area 13 Acre was recorded as Garni in the Khata of Gaon Sabha and was not included in the consolidation scheme, but subsequently by an order of correction passed by Consolidation Officer this plot was included in the consolidation scheme by determining valuation of eight Anna and it was allotted in the chak of petitioners. An appeal preferred by Gaon Sabha against the said order was dismissed vide order dated 13.4.1998 but revision preferred against appellate order was allowed and the plot in question was restored to Gaon Sabha.
3. Heard learned counsel for the petitioners and perused the record.
4. Learned counsel for the petitioners urged that there is no prohibition in U.P. Consolidation of Holdings Act (hereinafter in short referred to as the U.P.C.H. Act) for allotment of Gaon Sabha property recorded as Garhi (land mentioned in revenue record as covered by water) and order for inclusion of Plot No. 757 recorded as Garhi in petitioners' chak was rightly passed in accordance with law. He further urged that as the impugned order was passed by the Deputy Director of Consolidation after notification under Section 52 of the U.P.C.H. Act as such the Deputy Director of Consolidation acted illegally and without jurisdiction in passing the impugned order, the same is liable to be quashed.
5. I duly considered arguments of learned counsel for the petitioners and I am of the view that none of the arguments pressed by the learned counsel for the petitioners could be sustained in law. Under the U.P.C.H. Act 'consolidation' is defined under Section 3 (2). Explanation (iii) of Section 3(2) of the U.P.C.H. Act makes it clear that land mentioned under Section 132 of U.P. Zamindari Abolition & Land Reforms Act (in short hereinafter referred to as the U.P.Z.A. & L.R. Act) shall not be included in consolidation Scheme.
6. Section 132 of U.P.Z.A. & L.R. Act and Section 3 (2), Explanation (iii) are being reproduced below for ready reference:-
Section 132 of the U.P.Z.A. & L.R. Act "132 Land to which (bhumidhari) rights shall not accrue.-Notwithstanding to the provisions of Section 19 (bhumidhari) rights shall not accrue-
(a) Pasture lands or lands covered by water and used for the purpose of growing Singhara or other produce of land in the bed of a river and used for casual or occasional cultivation:
X X X X Section 3(2) of the U.P.C.H. Act
"3(2) 'Consolidation' means re-arrangement of holdings in a unit amongst several tenure-holders in such a way as to make their respective holdings more compact;
Explanation-For the purpose of this clause, holding shall not include the following:
X X X
(iii) Land mentioned in Section 132 of the U.P. Zamindari Abolition & Land Reforms Act, 1950;
X X X X
7. From perusal of the above provisions, it is clear that if any land is mentioned under Section 132 of the U.P.Z.A. & L.R. Act it shall not be included in the consolidation scheme for the purposes of consolidation.
8. Section 132 of the U.P.Z.A. & L.R. Act makes it clear that notwithstanding any thing contained in this Section, but without prejudice to Section 19 of the U.P.Z.A. & L.R. Act, Bhumidhari rights shall not accrue to any land covered by water. As plot in question is Garhi it cannot be part of consolidation scheme for allotment proceeding in the unit and as such it was rightly excluded by the Deputy Director of Consolidation from the consolidation scheme.
9. From the material on record it transpires that the land in dispute was recorded as Gaon Sabha property, as mentioned under Section 132 of the U.P.Z.A. & L.R. Act and as such at the time of revision of Field Book, Determination of valuation etc. and preparation of Statement of Principles, as required under Sections-8 and 8-A of the U.P.C.H. Act on the date of publication of the record under Section-9 of the U.P.C.H. Act in the unit, this land was not included in the consolidation scheme and that is why valuation of this land was not determined with the result the matter relating to valuation of the plot became final under Section-11-A of the U.P.C.H. Act, which runs as follows:-
"11-A. Bar on objection.- No question in respect of-
(i) claims to land,
(ii) partition of joint holdings, and
(iii) valuation of plots, trees, wells and other improvements, where the question is sought to be raised by a tenure-holder of the plot or the owner of the tree, well or other improvements recorded in the annual register under Section 10, relating to the consolidation area, (which has been raised under Section 9 or which might or ought to have been raised under that section), but has not been so raised, shall be raised or heard at any subsequent stage of the consolidation proceedings."
10. From perusal of record it is also clear that in correction proceeding, the valuation of the plot in dispute was determined and was illegally included in the consolidation scheme and allotted in the petitioners' Chak. The Deputy Director of Consolidation rightly passed the impugned order in accordance with law. There is no illegality in the order of the Deputy Director of Consolidation and does not call for any interference.
11. The matter relating to Pond and Tank etc. in villages came up for consideration before the Apex Court in Hinchlal Tiwari v. Kamla Devi and Ors., All C.J. 2001 1604. The Apex Court in paragraph-13 of the judgment has considered this aspect, same is being reproduced below:-
"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 best protection against knavish attempts to seek allotment in non-abadi sites"
12. In the aforesaid judgment, Apex Court laid down that as the Tank, Garhi (land covered by water), pond and forest etc. are nature's bounty they need be protected for proper and health environment which enables people to enjoy a quality life which is essence of guaranteed rights under Article 21 of the Constitution of India.
13. The Legislature, while enacting U.P.Z.A. & L.R. Act as well as U.P.C.H. Act, has also taken a special care for Tanks, Garhi, Ponds, water channels and riverbed etc. to ensure protection in order to give proper and healthy environment to enjoy the people a qualitative life and to prevent ecological disaster.
14. In these circumstances, I am of the view that the State Government may be directed to constitute a special Investigation Team to locate the plots recorded as Tank, Pokhari, Water Channels and riverbed etc. on the date of vesting in every village throughout the State of Uttar Pradesh and in case it is found that anyone is in unauthorized possession of such land mentioned under Section 132 of the U.P.Z.A. & L.R. Act and is using these land for any other purpose other than mentioned under Section 132 of the U.P.Z.A. & L.R. Act State Government shall take appropriate action forthwith and restore the same to Gaon Sabha to maintain the same in the same position as on 1st July, 1952.
15. Recently, some reports were published that in future we may face acute problem of water. Water strata in different parts of our country is also going down which is a cause of worry for entire nation.
16. In these circumstances, the direction of the Apex Court in Hinch Lal Tiwari v. Kamla Devi and Ors.(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. & 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 at the grass route level so that directions of the Apex Court be complied with.
17. 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., 1st July, 1952 by constituting a special investigation team consisting of Revenue authorities and other concerned officials and Environmentalists and take appropriate steps for compliance of the Apex Court's directions in Hinchlal Tiwari v. Kamla Devi and Ors. (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.
18. List after a year on 6th March, 2006. With complete report.