One of the first to set the 'precedent' towards implementation of the Hon.
Supreme Court Judgment on preserving COMMUNITY LANDS all over India. The
following has been inwarded today at the Secretariat as well as the HC of
Bombay at Goa, Panjim, Goa.
FLORIANO C. LOBO
383A Pirazona Moira Bardez Goa - 403 507 - Phone: (0832) 2470223 (M)
9890470896
Date: February 7, 2011
To,
The Chief Secretary,
Government of Goa,
Secretariat,
Porvorim- GOA.
Sir,
Sub: Supreme Court Judgment - Civil Appeal No. 1132/2011 @ SLP(C) No.
3109/2011 (Arising out of Special Leave Petition (Civil) CC No. 19869 of
2010)
Attached herewith, please find the copy of the above Judgment of the Hon.
Supreme Court of India with special reference being made to para 23 of the
said Judgment to invite your kind attention to the following for immediate
and prompt action:
The case in point is a commercial development taking place at Morod,
Mapusa. The attached 'Property Card' of the Mapusa City (copy) shows that
the concerned property under PT Sheet No. 163; Chalta No. 5/4 has an area
of 4100 square meters with the ORIGINAL OWNER being shown as 'COMUNIDADE OF
MAPUSA', TENANTED to Shri. GOVIND RAMA NAIK, and in POSSESSION of Shri.
Raojee S. Rane. COMUNIDADES OF GOA were earlier known as 'GAONKARIES'
meaning COMMUNITY AS LANDS OWNERS.
The said property is an agricultural field which came into the possession of
Shri. Govind Rama Naik as a Tenant under the 'land to the tiller' - THE GOA
AGRICULTURAL TENANCY ACT, 1964 - G D D Act No. 7 of 1964 [16th December,
1964] whereby Shri. Govind Rama Naik was only authorized to cultivate the
agricultural field in his possession as a tenant, not authorized to
transfer the land to any other THIRD PARTY nor have it CONVERTED to any
other purpose other than agriculture. With reference to the Conversions of
Agricultural lands, the Hon. Chief Minister has given undertaking in the
recently concluded Assembly Session that no such tenanted agricultural
lands shall be converted.
All these things have been done as are apparent through the attached
'property card' as well as the attached photographs where the agricultural
field is being developed for commercial purposes by unauthorized person or
persons.
Permit me to draw your kind attention to para 14 of the said Judgment where
this particular development does not fall in any of the categories mentioned
in the said Judgment i.e. rehabilitation of landless labourers or members
of
Scheduled Castes/Scheduled Tribes or the land actually being used for a
public purpose. In fact, the collective of Mapusa citizens under the banner
of Mapusa Nagrikancho Ekvott [MNE] has objected to the present Mapusa ODP
(Outline Development Plan) planning to commercialize this surrounding
agricultural area and has instead asked for public garden/park to be
developed in this area as there is no free space around for the people to
relax and unwind and for the children to play.
Kindly, therefore, not only stop all construction activity in this
property, but also order for the demolition of whatever that has been
constructed already, to restore the property back to it's original form and
the ownership reverted back to the COMUNIDADE OF MAPUSA, striking off the
name of the Tenant Shri. Govind Rama Naik, as a penalty for passing on his
ill-gotten rights to the said 'community land' vide the above mentioned
Tenancy Act of 1964, and for un-authorizedly passing this parcel of land to
a third party.
Let this set the PRECEDENT to give teeth to the above Judgment of the Hon.
Supreme Court so that all such already converted and developed agricultural
lands belonging to the Comunidades of Goa are restored back to the original
form. Reference is made to para 14 of the said Judgment.
In anticipation of your speedy and just action,
I remain,
Yours faithfully,
Attached:
Copy: Supreme Court Order dated 28 Jan., 2011
Copy: Property Card
Copy: Survey Plan
Copy: Colour Photographs x 4
Copy: To the Registrar, High Court of Bombay at Panjim-GOA, for kind
information.
Copy: To the Registrar, Supreme Court of India, New Delhi, for kind
information.
2011 STPL(Web) 81 SC 1
Jagpal Singh Vs. State of Punjab
Supreme Court Judgements @ www.stpl-india.in
2011 STPL(Web) 81 SC
SUPREME COURT OF INDIA
(MARKANDEY KATJU & GYAN SUDHA MISHRA, JJ.)
JAGPAL SINGH & ORS.
Appellant(s)
VERSUS
STATE OF PUNJAB & ORS.
Respondent (s)
Civil Appeal No.1132 of 2011 @ SLP(C) No.3109 of 2011 (Arising out of
Special Leave Petition
(Civil) CC No. 19869 of 2010)-Decided on 28-01-2011.
Village Common Land - Encroachment
JUDGMENT
Markandey Katju, J.-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.), 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. 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."
2011 STPL(Web) 81 SC 2
Jagpal Singh Vs. State of Punjab
Supreme Court Judgements @ www.stpl-india.in
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.
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 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 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.
2011 STPL(Web) 81 SC 3
Jagpal Singh Vs. State of Punjab
Supreme Court Judgements @ www.stpl-india.in
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 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.
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) 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.
2011 STPL(Web) 81 SC 4
Jagpal Singh Vs. State of Punjab
Supreme Court Judgements @ www.stpl-india.in
