UHIGH COURT OF UTTARAKHAND AT NAINITAL v. Islam

State of Uttarakhand and others ---------------------------------------------------------------------- Mr. Bhupesh Kandpal, Advocate for the petitioner Mr. Yogesh Chandra Tiwari, Standing Counsel for the State of Uttarakhand Ms. Priyanka Agrawal, Advocate for caveator Mr. Ashish Joshi, Advocate for respondent No. 4. ---------------------------------------------------------------------- -Respondents UJUDGMENT

According to petitioner, he filed an application for demarcation under Section 41 of the Land Revenue Act, 1901 which was dismissed by Assistant Collector, Ist Class, Dehradun. Petitioner challenged the order passed by Assistant Collector in a Revision, which is pending before Board of Revenue, Uttarakhand.

According to petitioner, he moved an interim relief application in the pending revision, however no decision could be passed thereupon, therefore he has sought a direction to Board of Revenue to decide his interim relief application within a stipulated time.

Ms. Priyanka Agrawal, learned counsel appearing for respondent No. 3, however submits that applicant has no locus standi to maintain this petition on behalf of Kabristan, as only a Sadar of Intazamiya Committee or Waqf Board can maintain a writ petition on behalf of Kabristan (Graveyard).

Learned State counsel submits that in demarcation 1 proceedings under Section 41 of Land Revenue Act, no interim relief can be granted by the Assistant Collector, therefore, in a revision filed against order passed in demarcation proceeding also, no interim relief can be granted. Learned State Counsel, however submits that Revisional Court can be directed to decide the revision expeditiously.

Learned counsel for the petitioner, however submits that the land comprised in Khasra No. 546 situated at Village Kargi Grant, Pargana Pachwadoon, Tehsil and District Dehradun, is recorded in revenue records as category ‘6-1’, which indicates that it is a river, thus he submits that in view of law declared by Hon’ble Apex Court in the case of Jagpal Singh and others Vs. State of Punjab and others, as reported in (2011) 11 SCC 396, land of water body cannot be used for any other purpose. Relevant paras of the said judgment are extracted below:- “17. In many States government orders have been issued by the State Government permitting allotment of the 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. Lal This Court

18. The present is a case of land recorded as a village Tiwari v. Kamala in Hinch pond. Devi [(2001) 6 SCC 496 : AIR 2001 SC 3215] (followed by the Madras High Court in L. Krishnan v. State of T.N. [(2005) 4 CTC 1 (Mad)] ) 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 2 tank attached to every temple, etc. These were their traditional rainwater 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 is not used for the common benefit of the villagers but misappropriated by certain individuals. The time has come when these malpractices must stop.”

Learned counsel for the petitioner further submits that respondent No. 3 is trying to encroach upon a water body land for constructing a residential colony thereupon, which is impermissible.