Alok Singh, J. (Oral):— Present petition is filed by the petitioners for quashing of the order dated 8.4.2013, whereby land belonging to khasra nos. 30, 41, 45 and 50 of Village Dohri Vakeel, Tehsil Kashipur, District Udham Singh Nagar was allotted to respondent no. 6. Further seeking writ of mandamus commanding the respondents to remove the encroachments from the public pathway situated in the land of khasra nos. 30, 41, 45 and 50 of Village Dohri Vakeel, Tehsil Kashipur, District Udham Singh Nagar and alternatively to grant alternate passage to the petitioners to reach to their land of khasra nos. 31 and 2/2.
2. Perusal of Annexure No. 3 to the writ petition, certified copy of the extract of khatauni of Village Dohri Vakeel, the then Pargana Kashipur, the then District Nainital, would reveal that entire land of khasra no. 31 measuring 0.50 hectare, khasra no. 41 measuring 0.57 hectare, khasra no. 45 measuring 1.15 hectare and khasra no. 50 measuring 0.42 hectare is recored as public pathway. Perusal of certified copy of village map would reveal that there is a public pathway over the entire area of khasra nos. 30, 41, 45 and 50 of Village Dohri Vakeel.
3. Mr. A.K Joshi, learned Addl. C.S.C appearing for respondent nos. 1, 2, 3, 4 & 5, does not dispute entries made in the khatauni as well as in the village map and fairly submits that entire area of khasra nos. 30, 41, 45 and 50 of Village Dohri Vakeel is being used as a public pathway.
4. Undisputedly, vide Government Order dated 8.4.2013, Annexure No. CA-5 to the counter affidavit of respondent no. 6, properties mentioned therein including part of khasra nos. 30, 41, 45 and 50 were allotted in favour of respondent no. 6.
5. Mr. Sharad Sharma, learned Senior Counsel assisted by Ms. Vandana Singh, learned counsel for respondent no. 6, has vehemently objected the maintainability of the writ petition, mainly on two grounds. Firstly, the petitioners have not filed copy of the order dated 8.4.2013, whereby land of disputed khasra nos. 30, 41, 45 and 50 of Village Dohri Vakeel was allotted in favour of respondent no. 6. Placing reliance on the judgment of Hon'ble Apex Court in the case of Surinder Singh v. Central Government reported in AIR 1986 SC 2166 and judgment of Division Bench of Allahabad High Court in the case of Pramod Kumar v. Sub-Divisional Officer, Khaga, Fatehpur reported in 1999 (90) Revenue Decisions page 649, Mr. Sharad Sharma, learned Senior Counsel has vehemently argued that since petitioners have not filed copy of the impugned allotment order dated 8.4.2013, therefore, writ petition is liable to be dismissed.
6. The second point raised by Mr. Sharad Sharma, learned Senior Counsel appearing for respondent no. 6, is that the petitioners themselves along with one Manjeet Singh have filed suit for permanent prohibitory injunction being OS No. 181 of 2013 in the Court of Civil Judge (Jr. Div.), Kashipur pertaining to the disputed khasra nos. 30, 41, 45 and 50, wherein ad interim injunction was declined, however, petitioners have concealed this important fact of filing of the civil suit and rejection of the ad interim injunction application, therefore, present petition should be dismissed on the ground that petitioners have not approached this Court with clean hands. Mr. Sharad Sharma further contends that if civil suit was pending on the date of filing of the writ petition seeking same relief, it ought not to have been entertained. Further contends that dismissal of the civil suit later on for non-prosecution vide order dated 8.7.2014 shall not make any difference. According to Mr. Sharad Sharma, since entire land was declared surplus under Section 27(4) of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960, therefore, petitioners, if so advised, may challenge the order declaring the land as surplus land. Mr. Sharma further contends that Manjeet Singh and few villagers have agreed with the District/Tehsil Revenue Authorities that disputed land may be allotted to respondent no. 6 and alternate raasta be provided to them over/through other properties. I have carefully perused both the judgments cited by Mr. Sharad Sharma, learned Senior Counsel appearing for respondent no. 6.
7. In the case of Surinder Singh (supra) and in the case of Pramod Kumar (supra), copy of the order under challenge in the writ petition was not available on the record, therefore, contents of the order and reasoning and the grounds of passing the impugned order were not before the Court. In such circumstances, Hon'ble Apex Court and the Division Bench of Allahabad High Court have held that in the absence of impugned order, same ought not to have been quashed. However, in the case in hand, true and correct copy of the impugned order dated 8.4.2013, has been placed on the record by respondent no. 6 himself as CA-5 to his counter affidavit, wherein reasoning and grounds of allotting the land in favour of respondent no. 6 are clearly mentioned. Therefore, this Court is able to examine the contents of the impugned order dated 8.4.2013 Consequently, this ground raised by Mr. Sharad Sharma, learned Senior Counsel appearing for respondent no. 6, is hereby over-ruled.
8. Let me now examine the another ground taken by Mr. Sharad Sharma.
9. In the rejoinder affidavit, the petitioners have specifically stated that they have not filed OS No. 181 of 2013. While exercising the writ jurisdiction under Article 226 of the Constitution of India, this Court, ordinarily, should not enter into the complicated question of fact to find out as to whether suit being OS No. 181 of 2013 was filed by the petitioners or not. Even if it is presumed that suit was filed by the petitioners, as advised by Mr. Sharad Sharma, learned Senior Counsel appearing for respondent no. 6, since suit itself was dismissed for non-prosecution on 8.7.2014, therefore, as on day no civil suit is pending involving identical question of law. Moreover, dismissal of civil suit for non-prosecution shall not act as res judicata in the present writ petition.
10. Moreover, since, this is not in dispute that entire area of khasra nos. 30, 41, 45 and 50 of Village Dohri Vakeel, Tehsil Kashipur, District Udham Singh Nagar is recorded as a public pathway, therefore, while hearing the writ petition under Article 226 of the Constitution of India, this Court should examine, rather must examine, as to whether public pathway can be allotted by the State Government. Moreover, while doing the complete justice, the technicality should not come in the way of this Court. If this Court finds that order impugned in the writ petition is totally without jurisdiction and ipso facto illegal, then writ petition should not be thrown on the hyper-technical ground that the petitioners themselves have filed civil suit, which was later on dismissed for non-prosecution.
11. Mr. A.K Joshi, learned Addl. C.S.C appearing for respondent nos. 1 to 5, in all fairness for which he is known at the Bar, has admitted that the land recorded and is being used as public pathway cannot be allotted for any commercial or agricultural purpose.
12. Hon'ble Apex Court in the case of Jagpal Singh v. State of Punjab reported in (2011) 11 SCC 396, in paragraph nos. 3, 4, 15, 16, 17, 18, 19 and 20, has held as under:
“3. 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 v. 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(c) of the Estates Abolition Act.
4. 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.
15. In M.I Builders (P) Ltd. v. 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.
16. In Friends Colony Development Committee v. 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.
17. 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.
18. The present is a case of land recorded as a village pond. This Court in Hinch Lal Tiwari v. Kamala Devi, AIR 2001 SC 3215 (followed by the Madras High Court in L. Krishnan v. State of Tamil Nadu, 2005 (4) 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.
19. 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.
20. 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. 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 used for the common benefit of the villagers but misappropriated by certain individuals. The time has come when these malpractices must stop.”
13. As per the dictum of Hon'ble Apex Court in the case of Jagpal Singh (supra), the land reserved for the community like public pathway, park, village pond, grazing grounds, etc. etc. should not be allowed to be allotted by the State Government or the Gram Sabha for any purpose and community at large should not be deprived from using the land, which was reserved for their purposes.
14. Since, property in question is a public pathway, therefore, it cannot be and could not have been declared as surplus land treating the same as holding of some agriculturists. Therefore, declaration of surplus land is without jurisdiction qua the land in question. Any compromise or settlement entered into between the revenue authorities and some of the villagers permitting the revenue authorities to allot the land of public pathway itself is without jurisdiction and ipso facto invalid and void ab initio.
15. Mr. Sharad Sharma, learned Senior Counsel appearing for respondent no. 6, does not dispute, as held hereinbefore, that entire area of khasra nos. 30, 41, 45 and 50 are recorded as public pathway. He does not challenge the correctness of the entries made in the revenue record. Therefore, allotment of the public pathway by the impugned order is without jurisdiction.
16. Consequently, writ petition succeeds and is hereby allowed. Impugned order dated 8.4.2013, Annexure No. CA-5 to the counter affidavit of respondent no. 6, is hereby quashed qua khasra nos. 30, 41, 45 and 50. Writ of mandamus is issued against respondent no. 2 to remove the illegal possession of respondent no. 6, in any case, within six weeks from today. Respondent no. 2 shall be at liberty to use such police force, which respondent no. 2 may think fit to remove the possession of respondent no. 6 therefrom.
17. No order as to costs.
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