Himachal Pradesh High Court
Sat Paul vs State Of H.P. And Another on 30 December, 2017
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 102 of 2008
.
Reserved on: 15.12.2016
Date of decision: 30.12.2016
Sat Paul ... Appellant
Versus
State of H.P. and another ... Respondents
Coram : r to
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes.
For the appellant: Mr. Anil Kumar, Advocate vice
Mr. Anup Rattan, Advocate.
For the respondents: Mr. Vikram Thakur, Deputy
Advocate General.
Ajay Mohan Goel, J.:
By way of this appeal, appellant has challenged the judgment and decree passed by the Court of learned Additional District Judge, Fast Track Court, Una, in Civil Appeal No. 12/03 RBT 296/05/03 dated 01.02.2008, vide which, learned Appellate Court while allowing the appeal filed by the present respondent/defendant, set aside the judgment 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 31/12/2017 00:15:21 :::HCHP 2and decree passed by the Court of learned Sub Judge Ist Class, Court No. II, Amb, District Una, in Civil Suit No. 30/97 .
dated 10.01.2003, whereby learned trial Court had decreed the suit of the appellant/plaintiff for permanent injunction restraining the defendants from raising any construction, changing user, nature and character of the suit land and had also decreed the appellant/plaintiff for mandatory injunction ordering the defendants to restore the suit land to its original position by demolition of super structure raised thereon by the respondents/defendants.
2. Brief facts necessary for adjudication of the present case are that the appellant/plaintiff (hereinafter referred to as the plaintiff), filed a suit for issuance of permanent injunction restraining the defendants from raising any construction or change user nature and character of land measuring 0-02-10 Hectares comprised of Kehwat No. 40 min, Khatauni No. 166 min, Khasra No. 31 as entered in the Jamabandi for the year 1993-94, situated in village Amokla Sadu, Tehsil Amb, District Una, H.P. and also for a decree of mandatory injunction ordering the defendants to restore the suit land to its original position and in the alternative, for demolition of super structure raised by the defendants over ::: Downloaded on - 31/12/2017 00:15:21 :::HCHP 3 the suit land if any raised during the pendency of the suit. As per the plaintiff, he was owner in possession of land in village .
Moen, Tehsil Dehra and Amokla Sadu in Tehsil Amb, though mutation of inheritance had not yet been sanctioned in his favour to the estate in Amokla Sadu. As per him, the suit land though was recorded in ownership of defendant No. 1, yet the same was a "Rafai-am Gair Mumkin" Talab and was used by the plaintiff and other inhabitants of the village as well as surrounding villages and cattle also used to drink r water from the said Talab while grazing and Talab was also used for other ancillary purposes by the inhabitants of the villagers of Amokla, Moen and Chhaproh. It was further mentioned in the plaint that the water remained stored in the Talab for about 8-9 months in a year and defendants had no right to change the user, nature and character of the said Talab.
As per the plaintiff, defendants about two weeks back had started digging foundation in the suit land without any rhyme or reason and on inquiry it was revealed that defendant No. 1 through defendants No. 2 and 3 were raising construction over the suit land thereby changing the very nature and character of the same. It was further mentioned in the plaint that there was no other Talai in the surrounding vicinity. In ::: Downloaded on - 31/12/2017 00:15:21 :::HCHP 4 this background suit was filed by the plaintiff praying for the relief already mentioned above.
.
3. The suit so filed by the plaintiff was contested by the defendants who by way of preliminary objections took the stand that neither the plaintiff was having any locus standi to file the suit and nor the Civil Court was having jurisdiction to adjudicate upon the matter in lieu of the provisions of Section 10 of H.P. Village Common Land (Vesting & Utilization) Act, 1974. It was mentioned in the written statement that the plaintiff was not a resident of village Duhal Bhatwalan, Tehsil Amb, District Una and that the suit land though was Talai many years ago but presently it was vacant barren land and no water was stored in the suit land and none of the inhabitants of the surrounding villages used it as a source of irrigation. It was mentioned in the written statement that had the same been used by the inhabitants of the area, then other inhabitants would have had come to the Court and filed the suit with the plaintiff and in fact suit land was barren land and defendants were not going to change the nature of the suit land and Government had constructed Patwarkhana Bhawan with the assistance of local Panchayat as the suit land was ::: Downloaded on - 31/12/2017 00:15:21 :::HCHP 5 situated in the middle of the Patwar Circle and construction work of the said Patwarkhana was in fact being carried out .
for the benefit of the locality. It was further mentioned in the written statement that the construction work was being carried out with the assistance of local Panchayat and in fact, Panchayat had also passed a resolution for the construction of Patwarkhana in consultation with the inhabitants of the area. It was further mentioned in the written statement that the Government took decision to construct Patwarkhana after it received resolution from the Panchayat. It was further mentioned that the plaintiff was not a resident of Patwar Circle Duhal Bhatwalan and was in fact a resident of village Moen, District Kangra and he had no right, title and interest whatsoever on the suit land. It was further mentioned in the written statement that State of Himachal Pradesh was owner in possession of the suit land and an amount of Rs.80,000/- already stood spent on the said construction of the Patwarkhana. It was denied that the suit land was serving as Talab and providing drinking water to the cattle, birds or passers by. On these grounds, defendants contested the claim of the plaintiff.
::: Downloaded on - 31/12/2017 00:15:21 :::HCHP 64. By way of replication, plaintiff reiterated the averments made in the plaint and also reiterated that he had .
landed property in the village in question.
5. On the basis of the pleadings of the parties, learned trial Court framed the following issues on 02.09.1998:-
1. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? ... OPP
2. Whether the suit is not maintainable? ... OPD
3. Whether the plaintiff has not complied with the r provision of section 80 CPC? ... OPD
4. Whether the suit is barred by law of limitation?
.... OPD
5. Whether this court has no jurisdiction to try this suit? ... OPD
6. Whether the suit is not properly valued? ... OPD
7. Whether the plaintiff has no locus-standi to file this suit? .... OPD
8. Relief.
6. Learned trial Court also framed the following additional issues on 19.08.2000:-
1A Whether the defendants have made construction during the pendency of the suit over the suit land as alleged? ... OPP ::: Downloaded on - 31/12/2017 00:15:21 :::HCHP 7 1B Whether the plaintiff is entitled to the relief of mandatory injunction as alleged? ... OPP .
7. On the basis of the evidence led by the respective parties before learned trial Court, the following findings were returned to the issues so framed by it:-
Issue No. 1: Yes.
Issue No. 1A: Yes.
Issue No. 1B: Yes.
Issue No. 2: No.
r Issue No. 3: No.
Issue No. 4: No.
Issue No. 5: No.
Issue No. 6: No.
Issue No. 7: No.
Relief : Suit decreed as per operative
portion of the judgment.
8. Learned trial Court vide its judgment and decree dated 10.01.2003, decreed the suit for permanent injunction as well as for mandatory injunction. Learned trial Court held that oral as well as documentary evidence demonstrated that there was a Talab in existence over the suit land and the same was so recorded till date. Learned trial Court held that plaintiff's contention that he was having land in adjoining ::: Downloaded on - 31/12/2017 00:15:21 :::HCHP 8 villages Amokla Sadu and Chhaproh in Tehsil Amb, District Una and that he was also having land in village Amokla Sadu .
and this fact stood proved from copy of Misal Hakiat Bandobast for the year 1985-86 Ext. P-6, wherein his father Shanker Dass was shown in the column of ownership alongwith other co-sharers. Learned trial Court also held that while plaintiff had alleged that defendants had raised construction over the suit land during the pendency of the suit, however defendants had not placed on record anything to show exact time of completion of construction i.e. whether the construction was completed before filing of the suit or thereafter. Learned trial Court allowed the suit by holding that defendants had not denied the existence of Talab (Pond) over the suit land but the case of the defendants was that the suit land was in fact a Talab many years ago but presently it was a barren land. Learned trial Court took note of the fact that plaintiff had placed on record copy of record of rights pertaining to the suit land since 1970-71 onwards as well as jamabandi of the same and also Missal Hakiat Bandobast Zadid Sani, which demonstrated that the suit land as per the revenue records was recorded in the ownership of Gram Panchayat Deh and in the column of possession it was ::: Downloaded on - 31/12/2017 00:15:21 :::HCHP 9 recorded as "Rafai-am" and the nature of the suit land was shown as" Gair Mumkin (Toba)". Learned trial Court further .
held that said position continued in documents upto the year 1981-82 and in the jamabandi for the year 1981-82 under the column of remarks, it was reflected that the suit land stood vested in the State of Himachal Pradesh and as such, the State of Himachal Pradesh came into picture in its capacity as owner of the suit land with entry of "Rafai-am" in the column of possession, whereas nature of suit land continued to be "Gair Mumkin Talab". Learned trial Court also held that for the first time entry of "Gair Mumkin Talab" and "Rafai-am"
were changed as "Gair Mumkin" Patwarkhana with possession of revenue department vide order dated 13.01.1987 passed by Deputy Commissioner, Una, on the basis of which mutation No. 37 was attested on 11.02.1997. Learned trial Court held that the said mutation was apparently attested during the pendency of the suit. Learned trial Court also held that during the pendency of the civil suit, H.S. Jassal, Advocate, visited the spot on an application so filed by the plaintiff and submitted his report Ext.PW1/A and as per the said report, H.S. Jassal, who entered the witness box as PW-1 found construction being carried out on the spot upto the ::: Downloaded on - 31/12/2017 00:15:21 :::HCHP 10 level of three feet and he also found remains of Talab visible on the spot. Learned trial Court also took note of the fact that .
presence memo Ext. PW1/B submitted by H.S. Jassal, Local Commissioner also contained signatures of President as well as Vice President of village Duhal Bhatwalan alongwith other residents of surrounding area. Learned trial Court also took note of the fact that PW-2 Moti Ram aged 76 years, who was resident of Amokla Sadu, had deposed in the Court that there was a pond over the suit land and it used to contain water for 10-12 months which was being used by the inhabitants of the surrounding villages as well as by cattle and birds. Learned trial Court also relied upon the statement of PW-3 Ruldu Ram, another 77 years senior citizen, resident of village Amokla Sadu, who also deposed that the suit land was pond and which was used for the purpose of drinking of water by the local residents as well as cattle etc. Learned trial Court also took note of the fact that PW-4 Kewal Krishan, President of Gram Panchayat Chhaproh, also stated that since the time he gained consciousness, he was seeing the suit land as pond and water used to be in the same for 10-11 months and the same was used by cattle etc. On these basis, it was concluded by learned trial Court that the evidence led by the ::: Downloaded on - 31/12/2017 00:15:21 :::HCHP 11 plaintiff supported the fact that there existed Talab over the suit land. Learned trial Court also held that DW-1 Satish .
Kumar only exhibited resolutions and there was nothing in his statement to support the fact that the suit land was a barren land. It also held that this witness joined service much after change of character of suit land. Learned trial Court also held that DW-2 Abhinash Sharma, Naib Tehsildar, Bharwain, had stated that he was posted at Bharwain only in July, 1998 and in his cross-examination, he categorically stated that he was not aware of the position of the suit land prior to the date of his posting. On these basis, it was held by learned trial Court that the evidence led by defendants to support the fact that the suit land was lying barren and Talab if any over the suit land was many-many years ago did not appear to be cogent and convincing. Learned trial Court also held that to prove his locus, plaintiff had placed on record copy of Missal Hakiat Bandobast for the year 1985-86 wherein his father was reflected in the column of ownership alongwith other co-
sharers. It further held that in the column of possession his father Shanker Dass and one Amar Nath were shown in possession of some of the land recorded in the said document as Hissadaran. Learned trial Court held that it had come in ::: Downloaded on - 31/12/2017 00:15:21 :::HCHP 12 the evidence that villages Amokla Sadu, Moen, Rehi and Chhaproh, were adjoining each others and this fact was .
supported by all the witnesses of the plaintiff as well as DW-1 and DW-2 also, who admitted in their statements that on three sides of the suit land there was land of plaintiff and on 4th it was a road. On these basis, learned trial Court held that plaintiff had locus to file and maintain the suit. Learned trial Court also held that report of Local Commissioner H.S. Jassal PW-1, who visited spot during the pednency of the case on the application so filed by the plaintiff, demonstrated that the defendants had carried out construction during the pendency of the suit, demonstrated that large scale construction was being carried out on the suit land during the pendency of the suit. Learned trial Court also held that the act of the defendants of carrying out construction during the pendency of the suit despite there being stay order showed their high handedness coupled with the fact that the attestation of mutation was done on 11.02.1997 on the basis of the order passed by Deputy Commissioner, Una dated 13.01.1997, which categorically proved that the construction at the site was not complete before filing of the suit. On these basis, learned trial Court decreed the suit.::: Downloaded on - 31/12/2017 00:15:21 :::HCHP 13
9. Feeling aggrieved by the judgment so passed by learned trial Court, State filed an appeal.
.
10. In appeal, learned Appellate Court reversed the judgment and decree passed by learned trial Court vide its judgment dated 01.02.2008. While reversing the judgment and decree so passed by learned trial Court, learned Appellate Court held that plaintiff had not filed the suit in a representative capacity and, therefore, in order to succeed in the case the plaintiff was required to prove his individual right. Learned Appellate Court held that onus to prove his locus standi and cause of action against the defendants was upon the plaintiff. Learned Appellate Court further held that on the basis of evidence on record as well as arguments advanced by the parties, plaintiff was not able to prove his locus standi. Learned Appellate Court held that genesis of the case of the plaintiff was that he was owner in possession of land in village Moen, Tehsil Dehra, District Kangra and village Amokla Sadu, Tehsil Amb, District Una and that the suit land was situated in village Amokla Sadu. Learned Appellate Court held that to prove his ownership of land in village Amokla Sadu, plaintiff had relied upon copy of Misal Hakiat Bandobast Jadid for the year 1985-86 (Ext. P-6). Learned Appellate ::: Downloaded on - 31/12/2017 00:15:21 :::HCHP 14 Court held that in the said document names of various persons were mentioned as owners in possession of the land .
in village Amokla Sadu but the name of plaintiff was not recorded therein. It further held that no doubt the name of the father of plaintiff was there in revenue record but simply because his father was having land in the village, the same was not sufficient to prove the ownership of plaintiff. On these basis, it was held by learned Appellate Court that there was no evidence on record to demonstrate that the plaintiff was a resident of village Amokla Sadu. Learned Appellate Court also held that in the plaint plaintiff had shown himself to be resident of village Moen, Tehsil Dehra, District Kangra and he had admitted this fact in his statement as PW-5. Learned Appellate Court further held that the plaintiff had not filed on record copy of Pariwar register to show that he was a resident of village Amokla Sadu in District Una. It also held that though the plaintiff had tried to establish that both the villages Moen in District Kangra and Amokla Sadu in District Una, were adjoining villages and inhabitants of these villages and that of other adjoining villages were using the Talab in question for the purpose of drinking water for their cattle etc. but evidence was lacking in this regard and neither any list of ::: Downloaded on - 31/12/2017 00:15:21 :::HCHP 15 inhabitants or revenue record etc. was produced by the plaintiff to prove this fact. Learned Appellate Court also held .
that neither oral nor documentary evidence adduced by the plaintiff could establish that the plaintiff was having locus standi or cause of action to file and maintain the civil suit. It also held that though the plaintiff had stated that Talab in question was "prepared by his ancestors in their own land", however, this fact was beyond pleadings nor any evidence was led by the plaintiff to substantiate the same on record.
Learned Appellate Court further held that the relief of injunction was a discretionary relief. Learned Appellate Court also held that there was substance in the plea of the State that earlier the suit land might have been used by the villagers as Talab but with the passage of time the purpose had lost its importance and existence of Patwarkhana was need of the day. On these basis, it was held by learned Appellate Court that though no case was made out for injunction in favour of the plaintiff when he was not a resident of village concerned and neither the suit had been filed in a representative capacity. On these basis, learned Appellate Court set aside the judgment and decree passed by ::: Downloaded on - 31/12/2017 00:15:21 :::HCHP 16 learned trial Court and allowed the appeal thereby dismissing the suit so filed by the plaintiff.
.
11. Feeling aggrieved by the said judgment, plaintiff has filed the present appeal, which was admitted on 14.03.2008. The substantial questions of law arising out of the appeal are as under:-
"1. Whether the impugned judgment is a result of misinterpretation of law laid down in AIR 2001 Supreme Court 3215?
2. Whether the impugned judgment is a result of mis-appreciation of evidence and law on the question of locus standi?
3. Whether construction activities can be carried out on the land recorded as "Rafai- aam Gair Mumkin" Talab i.e. a source of water for public use?"
12. I have heard learned counsel for the parties and have gone through the records of the case as well as the judgments and decrees passed by learned Courts below.
13. I will deal with substantial questions of law No. 1 and 3 collectively.
::: Downloaded on - 31/12/2017 00:15:21 :::HCHP 17Substantial Questions of Law No. 1 and 3:
14. I have mentioned in detail the reasons which .
were given by both the learned Courts below while arriving at their respective findings. Revenue records produced on the record by the plaintiff categorically demonstrate that the nature of the suit land in revenue records was reflected as "Gair Mumkin (Toba)" even in Ext. P-1 which is copy of jamabandi of the suit land pertaining to the year 1993-94 in which State of Himachal Pradesh was recorded as owner of the suit land and in the column of possession, entry recorded as "Rafai-am". The mode and manner in which the revenue entries qua the nature of the suit land were converted into "Gair Mumkin" Patwarkhana have been elaborately dealt with by learned trial Court which categorically demonstrate that these changes in the revenue records were effected during the pendency of the suit. Learned Deputy Advocate General was not able to point out to the contrary during the course of arguments. Besides this, the factum of suit land being pond/Talab/Toba and it being used for the purposes of drinking water for inhabitants of nearby villages as well as cattle also stands categorically proved by the ocular testimony produced on record by the plaintiff, which is cogent and ::: Downloaded on - 31/12/2017 00:15:21 :::HCHP 18 reliable and credibility of which testimony could not be impeached in the course of cross-examination by the .
defendants.
15. Besides this, records reveal that plaintiff had exhibited record of rights pertaining to the suit land since 1970-71 onwards as well as jamabandi of the same and also Missal Hakiat Bandobast Zadid Sani, which prove that the suit land as per the revenue records was recorded in the ownership of Gram Panchayat Deh and in the column of possession it was recorded as "Rafai-am" and the nature of the suit land was shown as" Gair Mumkin (Toba)". These documents demonstrate that upto the year 1981-82 this position continued and even in the jamabandi for the year 1981-82 under the column of remarks, it was reflected that the suit land stood vested in the State of Himachal Pradesh and as such, the State of Himachal Pradesh came into picture in its capacity as owner of the suit land with entry of "Rafai-
am" in the column of possession, whereas nature of suit land continued to be "Gair Mumkin Talab". It is also a matter of record that for the first time entry of "Gair Mumkin Talab"
and "Rafai-am" were changed as "Gair Mumkin" Patwarkhana with possession of revenue department vide order dated ::: Downloaded on - 31/12/2017 00:15:21 :::HCHP 19 13.01.1987 passed by Deputy Commissioner, Una, on the basis of which mutation No. 37 was attested on 11.02.1997.
.
Records also reveal that Sh. H.S. Jassal, Advocate, visited the spot as Local Commissioner during the pendency of case before learned trial Court and submitted his report Ext. PW1/A and as per the said report, Sh. H.S. Jassal PW-1 found construction being carried out on the spot upto the level of three feet and he also found remains of Talab visible on the spot. The spot was visited by him in the presence of President as well as Vice President of village Duhal Bhatwalan alongwith other residents of surrounding area. PW-2 Moti Ram aged 76 years, who was resident of Amokla Sadu, deposed in the Court that there was a pond over the suit land and it used to contain water for 10-12 months which was being used by the inhabitants of the surrounding villages as well as by cattle and birds. PW-3 Ruldu Ram, another 77 years senior citizen, resident of village Amokla Sadu, also deposed that the suit land was pond and which was used for the purpose of drinking of water by the local residents as well as cattle etc. PW-4 Kewal Krishan, President of Gram Panchayat Chhaproh, also stated that since the time he gained consciousness, he was seeing the suit land as pond ::: Downloaded on - 31/12/2017 00:15:21 :::HCHP 20 and water used to be in the same for 10-11 months and the same was used by cattle etc. All these aspects of the matter .
have not been appreciated by learned Appellate Court at all.
16. In fact, a perusal of the judgment passed by learned Appellate Court demonstrates that primarily what weighed with learned Appellate Court while allowing the appeal and setting aside the judgment and decree passed by learned trial Court was that the plaintiff had not been able to demonstrate that he was having any land in the village concerned adjacent to which the suit land was situated and, therefore, he was not having any locus standi to file the suit as the suit was not filed in a representative capacity. No adjudication was done by learned Appellate Court on the findings returned by learned trial Court to the effect that the suit land was a "Gairmumkin Toba" and the same could not have been allotted for construction of any allied purpose in view of the law declared by the Supreme Court AIR 2001 Supreme Court 3215. Learned Appellate Court while holding that there was substance in the plea of the State that earlier suit land might have been used by the villagers as Talab but with the passage of time that purpose had lost importance and the existence of Patwarkhana was need of ::: Downloaded on - 31/12/2017 00:15:21 :::HCHP 21 the day, did not return any findings as to whether the findings returned by learned trial Court to the effect that the .
suit land in fact was recorded as Talab in revenue records and, therefore, it could not have been used for any other purpose, were correct findings or incorrect findings. Not only this, judgment of the Hon'ble Supreme Court which was relied upon by learned trial Court while allowing the suit was dealt with in cursory manner by learned Appellate Court in the following terms:-
r "The plaintiff has relied upon the case law as laid down in AIR 2001 S.C. 3115 titled Hinch Lal Tiwari v. Kamala Devi and others. But the same is not applicable in this case as factually it is on different footing."
No reasoning exists in the Appellate Court judgment as to how the judgment of Hon'ble Supreme Court was on a different footing.
17. The Hon'ble Supreme Court in the above mentioned judgment (also reported in (2001) 6 Supreme Court Cases 496), has held that the material resources of community like forests, tanks, ponds, hillocks, mountain etc., are nature's bounty and they maintain ecological balance.
They need to be protected for a proper and healthy ::: Downloaded on - 31/12/2017 00:15:21 :::HCHP 22 environment which enables people to enjoy a quality life which is the essence of the right guaranteed under Article 21 .
of the Constitution. The Hon'ble Supreme Court in the above mentioned judgment wherein also the issue involved was as to whether part of land subject matter of the case therein which was in the character of pond could be allotted for construction purpose or not, held:
"11. Reverting to the first part of the question, from the report of the Tahsildar dated 18-4- 1990 which is termed as the first report, it is clear that in the said Survey No. 774-KA, there is a pond (talab). The same is the substance of the report of the SDO dated 20-4-1990. Two more reports were called for by the orders of the High Court. They are dated 12-9-1999 and 3-4-2000. We do not find any substantial difference between these reports and the reports prepared by the Tahsildar and the SDO. We may also mention here that in khasra khatauni for the years 1387 to 1392 Fasli (corresponding to years 1980 to 1985) and 1393 to 1398 Fasli (1986-92) the description of the said survey number is given as pond. Consistent with those entries the Additional Collector found it to be a pond (talab) and cancelled the allotment of plots in favour of the ::: Downloaded on - 31/12/2017 00:15:21 :::HCHP 23 said respondents. The Commissioner rightly confirmed the order of the Additional Collector. In writ petition, the High Court, in the .
impugned order, noted :
"From the report of the Sub-
Divisional Officer dated 3-4-2000 it is clear that the land had the character of a pond but due to passage of time most of its part became levelled. But some of the portion had still the character of a pond and during the rainy season it is covered by water. The area which is covered by r water or may be covered by water in the rainy season could not be allotted as abadi site to any person."
12. On this finding, in our view, the High Court ought to have confirmed the order of the Commissioner. However, it proceeded to hold that considering the said report the area of 10 biswas could only be allotted and the remaining five biswas of land which have still the character of a pond, could not be allotted. In our view, it is difficult to sustain the impugned order of the High Court. There is concurrent finding that a pond exists and the area covered by it varies in the rainy season. In such a case no part of it could have been allotted to anybody for construction of house building or any allied purposes."
::: Downloaded on - 31/12/2017 00:15:21 :::HCHP 2418. Though, this Court is not oblivious to the fact that the Hon'ble Supreme Court has delivered the above judgment .
in a matter which arose out of judgment and order of High Court of Judicature at Allahabad in a writ petition but the law so declared by the Hon'ble Supreme Court that the pond area cannot be allotted to anybody for construction of house, building or any allied purposes and that it is the duty of the State to develop the same which would on one hand prevent ecological disaster and on the other hand provide better environment for the benefit of the public at large and that vigil is the best protection against knavish attempts to seek allotment of non-abadi sites, is the law declared by the Hon'ble Supreme Court for all to follow. However, learned Appellate Court has miserably failed to appreciate, understand and follow the law so declared by Hon'ble Supreme Court and that also without assigning any reason as to how the judgment of Supreme Court was on a different footing.
19. In my considered view, the above mentioned judgment of Hon'ble Supreme Court is applicable to the facts of this case on all counts and whereas, learned trial Court rightly relied upon the said judgment passed by Hon'ble ::: Downloaded on - 31/12/2017 00:15:21 :::HCHP 25 Supreme Court, learned Appellate Court erred in not appreciating the law so declared by Hon'ble Supreme Court.
.
It is pertinent to mention here that thereafter while reiterating the above judgment, a three-Judge Bench of the Hon'ble Supreme Court in Meghwal Samaj Shiksha Samiti Vs. Lakh Singh and others, (2011) 11 Supreme Court Cases 800, has held:
"1. A village pond in Village Raniwara Kalan, District Jalore, was shown as "gair mumkin nada", in the revenue records. The said pond fell into disuse and after sometime the District Collector, Jalore allotted 0.48 ha out of the said area, on a 99 year lease to Meghwal Samaj Shiksha Samiti ("the Samiti", for short), the appellant in CA No. 821 of 2004, vide order dated 6-8-2001 for the purpose of construction of a students' hostel.
2. One of the villagers (the first respondent in the two appeals) challenged the allotment of land in a public interest litigation on the ground that the village pond cannot be allotted for construction. The High Court, by the impugned order dated 20-11-2002, allowed the said petition. It recorded a finding that the land records clearly showed that the disputed plot allotted to the Samiti was part of ::: Downloaded on - 31/12/2017 00:15:21 :::HCHP 26 the village pond. It held that such land which formed part of a pond could not have been allotted for the purpose of making any .
construction. Therefore, the High Court
allowed the petition and set aside the
allotment dated 6-8-2001 in favour of the Samiti. However, having noted the fact that the land had been allotted to the Samiti for the purpose of a students' hostel for the benefit of backward classes, the High Court directed the State Government to allot a suitable alternative land for the said hostel purpose to the Samiti within three months.
The said order is challenged in these two appeals by the Samiti and by the State Government.
3. As noticed above, the High Court, after examining the revenue records, has recorded a finding of fact that the land which was allotted, was a pond. The learned counsel for the Appellants in the two appeals contended that the land though described in the revenue records as a "gair mumkin nada" was neither a pond nor a channel leading to a water body and there is no water in the said land; and that the Patwari had given a report that the land was fit for allotment and therefore there was no irregularity in the allotment.::: Downloaded on - 31/12/2017 00:15:21 :::HCHP 27
4. This Court, in Hinch Lal Tiwari v. Kamala Devi observed thus: (SCC p. 501, paras 12-13, "12. ... There is concurrent finding .
that a pond exists and the area covered by it varies in the rainy season. In such a case no part of it could have been allotted to anybody for construction of house building or any allied purposes.
13. It is important to notice that the material resources of the community like forests, tanks, ponds, r 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 ::: Downloaded on - 31/12/2017 00:15:21 :::HCHP 28 public at large. Such vigil is the best protection against knavish attempts to seek allotment in non-abadi sites."
.
5. We find that after examining the entire facts, the High Court has recorded a finding that the land allotted was part of a village pond. The report of the Patwari regarding suitability of land for allotment cannot supersede the revenue entries. Therefore, we do not propose to interfere with the impugned order of the High Court.
6. The appellants contended that a civil r suit filed by the villagers for a similar relief is pending and in view of it, the public interest litigation ought not to have been entertained. Mere pendency of a suit by others, will not affect the maintainability of the writ petition in public interest.
7. In view of the above, we dismiss these appeals making it clear that if no alternative land has been allotted by the State to the Samiti (the appellant in CA No. 821 of 2004) for the purpose of the students' hostel, it shall do so within a period of four months from today as directed by the High Court."
20. Therefore, the judgment and decree passed by learned Appellate Court is in fact a result of misinterpretation ::: Downloaded on - 31/12/2017 00:15:21 :::HCHP 29 of law laid down by Hon'ble Supreme Court in AIR 2001 Supreme Court 3215 and in fact, no construction activity .
can be claimed in the "Rafai-am Gair Mumkin" in view of the pronouncement of law laid down by the Hon'ble Supreme Court as mentioned above. These two substantial questions of law are answered accordingly.
Substantial Question of Law No. 2:
21. r In my considered view, findings arrived at by learned Appellate Court to the effect that the plaintiff was not having any locus standi to file and maintain the suit, are perverse and not sustainable in law. Learned Appellate Court while arriving at the said conclusion erred in not appreciating the material on record in its correct perspective. Learned Appellate Court failed to appreciate that plaintiff had placed on record copy of Missal Hakiat Bandobast for the year 1985- 86 wherein his father was reflected in the column of ownership alongwith other co-sharers. It further failed to appreciate that in the column of possession his father Shanker Dass and one Amar Nath were shown in possession of some of the land recorded in the said document as Hissadaran. It further failed to appreciate that it had come in the evidence ::: Downloaded on - 31/12/2017 00:15:21 :::HCHP 30 that villages Amokla Sadu, Moen, Rehi and Chhaproh, were adjoining each others and this fact was proved by all the .
witnesses of the plaintiff as well as by DW-1 and DW-2 also, who admitted in their statements that on three sides of the suit land there was land of plaintiff and on 4th there was a road. In addition, in my considered view, even otherwise as it stands proved on record that father of the plaintiff was one of the co-sharers of property in the village where the suit land was situated, the plaintiff was having locus standi to file and maintain the suit as it could not be denied that plaintiff was having interest over the property which was owned by his father and this alone conferred plaintiff the locus standi to file and maintain the suit. This relevant aspect of the matter has also been ignored by the learned Appellate Court. Therefore, the findings returned by learned Appellate Court that the plaintiff had no locus standi to file and maintain the suit are not sustainable and are accordingly set aside. This Substantial question of law is answered accordingly.
22. In view of the above discussion, this appeal is allowed and the judgment and decree passed by learned Appellate Court in Civil Appeal No. 12/03 RBT 296/05/03 ::: Downloaded on - 31/12/2017 00:15:21 :::HCHP 31 dated 01.02.2008, are set aside, whereas the judgment and decree passed by the Court of learned Sub Judge Ist Class, .
Court No. II, Amb, District Una, H.P., in Case No. 30/97 dated 10.01.2003, are upheld. No order as to costs. Miscellaneous applications pending, if any, stand disposed of. Interim order, if any, also stands disposed of.
(Ajay Mohan Goel),
December 30, 2016 Judge
(BSS) r
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