IMPORTANT POINT
Allotted land formed part of pond (Talab) and thus could not be allotted as abadi site to any person.

Headnote:U.P. Zamindari Abolition and Land Reforms Act, 1950 & Rules-Sections 122-C (1) r/w 117 and 3(14) -Pond (Talab) land allotted to respondents by Tehsildar @ 15 Biswas to each of 10 respondents-Collector set it aside-Commissioner upheld -High Court reduced it to 10 Biswas each-Appellant alleging that under Section 122-C(1)-No pond land could be allotted for abadi purpose-Respondents alleging it was not pond land-Whether allotted land forms part of pond (Talab) and if so can it be allotted under Section 122-C(1) of the Act as abadi site-Appeal allowed-High Court reversed-Order of Commissioner confirming Collector restored.
       Held : Reverting to the first part of the question, from the report of the Tehsildar dated April 18, 1990 which is termed as the first report, it is clear that in the said survey number 774-KA there is a pond (Talab). The same is the substance of the report of the S.D.O. dated April 20, 1990. Two more reports were called for by the orders of the High Court. They are dated September 12, 1999 and April 3, 2000. We do not find any substantial difference between these reports and the reports prepared by the Tehsildar and the S.D.O. 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 pond (Talab) and cancelled the allotment of plots in favour of the 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 a character of the pond but due to passage of time its most of the part became levelled. But some of the portion had still the character of the pond and during the rainy season it is covered by water. The area which is covered by water or may be covered by water in the rainy season could not be allotted as abadi site to any person."
       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 has still the character of 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 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. It is important to note that 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 enable people to enjoy a quality life which is essence of the guaranteed right under Article 21 of the Constitution. The government, including 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 public at large. Such vigil is the best protection against knavish attempts to seek allotment in non-abadi sites. For the afore-mentioned reasons, we set aside the order of the High Court, restore the order of the Additional Collector dated February 25, 1999 confirmed by the Commissioner on March 12, 1999. Consequently, respondents 1 to 10 shall vacate the land, which was allotted to them, within six months from today. They will, however, be permitted to take away the material of the houses which they have constructed on the said land. If respondents 1 to 10 do not vacate the land within the said period the official respondents i.e. respondents 11 to 13 shall demolish the construction and get possession of the said land in accordance with law. The State including respondents 11 to 13 shall restore the pond, develop and maintain the same as a recreational spot which will undoubtedly be in the best interest of the villagers. Further it will also help in maintaining ecological balance and protecting environment in regard to which this Court has repeatedly expressed its concern. Such measures must begin at the grass-root level if they were to become the nation s pride. The appeal is accordingly allowed. There shall be no order as to costs. (Paras 10, 11, 12, 13, & 14)

ORDER

Leave is granted.

2. This appeal is from the judgment and order of the High Court of Judicature at Allahabad allowing in part Civil Misc. Writ Petition No. 26572 of 1999, filed by respondents 1 to 10, on August 16, 2000.

3. The dispute relates to plot No. 774-KA measuring 15 biswas situated in village Ugapur, Talluka Asnao, District Sant Ravidas Nagar (U.P.) (hereinafter referred to as pond). It appears that proceeding was initiated by Lekhpal of the village to allot plots of land to an extent of 15 biswas of the pond area on August 11, 1988.

The S.D.O. allotted 250 sq. yards to each of respondents 1 to 10 who are said to belong to one family. Seventeen persons of that village objected to the said allotment under Rule 115-P of the U.P. Zamindari Abolition & Land Reforms Rules (for short, the Rules ). The Additional Collector called for a report from the Tehsildar on their objections but the matter seems to have rested there as the objectors withdrew their objections. At that stage the appellant filed an application praying the Additional Collector to cancel the allotment of land in favour of respondents 1 to 10. On February 25, 1999 the Additional Collector cancelled the allotment in question made in their favour. They carried the matter unsuccessfully in revision before the Commissioner who by order dated March 12, 1999 dismissed the revision. Challenging the correctness of the order of the Divisional Commissioner the said respondents filed Writ Petition No. 26572 of 1999 in the High Court of Judicature at Allahabad. By the impugned order the High Court partly allowed the Writ Petition by confirming the allotment in respect of 10 biswas and cancelling in respect of 5 biswas, which led to filing of this appeal.

4. Mr. Ranjit Kumar, the learned senior counsel for the appellant vehemently contends that the power of allotment of the land is available in respect of abadi site and not in respect of a pond which is a public utility and meant for public use; that no part of it could have been allotted in favour of any person, much less in favour of respondents 1 to 10 who do not fall in the specified categories of the beneficiaries under the Rules. He invited our attention to Section 122-C(1) which specifies the classes of lad which can be earmarked for the provisions of abadi sites and pointed out that pond (Talab) area is not among them.

5. Mr. Dwivedi, the learned senior counsel appearing for the official respondents argued that having regard to the provisions of the Act and the Rules, it is difficult to support the allotment of the pond land in favour of respondents 1 to 10 and that the order of cancellation of allotment is justified and valid. Mr. Garg the learned counsel appearing for respondents 1 to 10 submits that Lekhpal forwarded proposals for allotment of house sites in the land which ceased to be pond, to the Additional Collector who allotted the plots in their favour, therefore, it must be assumed that the land was treated as abadi site in respect of which allotment of house site would be permissible.

6. The short question that arises for our consideration is whether the allotted land forms part of pond (Talab) and if so, can it be allotted under Section 122C(1) of the Act?

7. It would be useful to refer to the provisions of U.P. Zamindari Abolition and Land Reforms Act, 1950 (referred to in this judgment as the Act ). Under Section 4 of the Act all estates shall vest in the State from the specified date. Section 117 of the Act deals with vesting of certain lands in Gaon Sabha. Clause (vi) of the said Section which is relevant for our purpose reads thus:

"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, declared that as from a date to be specified in his behalf, all or any of the following things,

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2001 Supreme(SC) 980

IMPORTANT POINTAllotted land formed part of pond (Talab) and thus could not be allotted as abadi site to any person.

IMPORTANT POINT
Allotted land formed part of pond (Talab) and thus could not be allotted as abadi site to any person.