State Of U.P. Thru. District Magistrate Ambedkar Nagar & Anr. vs Samundra Devi Deceased Thru. Ram Surat & Ors.

Hon'Ble Prashant Kumar, J.

Heard Sri Anuj Kudesiya, learned Senior Advocate/Additional Advocate General assisted by Sri Gopal Krishna Pathak, learned Additional Chief Standing Counsel appearing for the appellant-State and Sri Brijesh Kumar Verma along with Sri Rajdeep Chaudhary, learned counsel appearing for the respondents and perused the records.

The instant Second Appeal under section 100 of the Code of Civil Procedure, 1908, has been preferred by the appellants against the judgment and order dated 30.07.2018 passed by the Additional District Judge, Court No. 1, District - Ambedkar Nagar (hereinafter referred as ‘Appellate Court’) in an appeal bearing Regular Civil Appeal No. 63 of 2015 (State of U.P. and anr. v. Smt. Samundra Devi & Others), whereby the first appeal filed by the appellants was dismissed by upholding the judgement and order dated 05.11.2015 passed by Civil Judge, Senior Division, District - Ambedkar Nagar (hereinafter referred as ‘Civil Court’) in a civil suit bearing Regular Suit No.388 of 2007 (Smt. Samundra Devi v. State of U.P. and anr.).

A suit for permanent injunction and ejectment was filed by the predecessor-in-interest, bearing Original Suit No. 388 of 2007, in respect of land bearing Gata No. 334A, admeasuring one bigha and 19 biswa, situated at Village Achhati, Pargana Bidahar, Tehsil Alapur. There was a link road being constructed in 1987-88 over the land which belonged to Manraj Kumari (who was the predecessor-in-interest of the respondent), which divided the entire land into two parts. Since the link road passed through the respondents’ land, the Sub-Divisional Magistrate, Tehsil Alapur, Ambedkar Nagar, by order dated 22/03/1988, proposed to acquire the land to be used by the road and in lieu thereof granted alternative land in the abadi of Gaon Sabha Achhati. Accordingly, a resolution was passed on October 15, 1988, for the exchange of the land. The alternative land was allotted to the predecessor of the respondents, wherein her name was also mutated in the revenue record on September 6, 1989. She continued to be the owner and in possession of the land as bhumidhar.

Subsequently, on May 14, 1990, a registered sale deed was executed in favor of the present respondents by the predecessor-in-interest in respect of the exchanged land (bearing Gata No.112(minjumla), admeasuring 9 biswa). The name of the present respondents, who were buyer of the land, were recorded in the revenue record as bhumidhar with transferable rights. On this land, the respondents constructed a house containing five rooms along with a boundary wall. Thereafter the respondents were in possession and enjoyed the said property.

Thereafter, the tehsildar has expunged the name of the respondents from the revenue record in a reference filed before him, the same was challenged by the respondents and the order expunging the name has been set aside. It is in the year 2007, the appellant/State started construction of a Fire Station on the said land, which belongs to the respondents claiming it is to be a pond land.

The respondents aggrieved by the illegal action of the appellants by illegally taking over the land, which has been legally allotted to them, was left with no other alternative, but to file a suit for permanent injunction and ejectment (being Regular Suit No.388 of 2007) before Civil court, Ambedkar Nagar.

On behalf of the respondents-plaintiffs, oral evidences were adduced by examining PW-1 Samundra Devi and PW-2 Shri Ram Yadav, whose examination-in-chief affidavits were filed and proved. In support of their contentions the respondents-plaintiffs filed photocopy of the sale deed, an extract of the Khatauni, a photocopy of the site plan (Naksha Nazri), a photocopy of the proceedings of the Gram Sabha dated 15.10.1988, a certified copy of the order passed on 06.07.1989, a photocopy of the order in the revision case (Samundra Devi v. State of Uttar Pradesh), the Khatauni pertaining to Gata No. 112, an extract of the Khatauni of Village Achhati, Tehsil Alapur, the six-year Khatauni, the original sale deed, the original copy of the Right to Information (RTI) document obtained from the office of the District Magistrate, Ambedkar Nagar, a copy of the Gazette publication dated 26.01.2011 published in the Hindustan newspaper, a copy of the Gazette publication appearing in the November 2011 edition of Hindustan, the original order dated 21.07.2009 passed in Revision No. 953 by the Court of the Additional Commissioner (Administration), Faizabad Division, Faizabad, and other relevant documents as a documentary evidences.

Defendants (appellants herein) have filed a written statements before the Civil court and denied the averments made in the plaint filed by the plaintiffs (respondents herein). In their written statement, they contended that Gata No. 112, measuring 7 Bighas 15 Biswas, situated at Village Achhati, Tehsil Alapur, District Ambedkar Nagar, is recorded in the revenue records as pond land. They alleged that the plaintiff and certain other persons had obtained fraudulent entries in respect of the said land, which were subsequently canceled pursuant to an inquiry conducted on the directions of the District Magistrate. Consequently, the land was ordered to continue to be recorded as pond land. The respondents further contended that the plaintiff never had any right, title or possession over the disputed land and that the land belongs to the State and is under the management of Gram Panchayat Achhati. The suit was also challenged for non-joinder of the Gram Panchayat as a necessary party, failure to challenge the order of the Deputy Director of Consolidation before the competent forum, and being barred by the provisions of the applicable revenue law. It was further pleaded that the statutory notice under Section 80(1) C.P.C. had not been served before institution of the suit and that the suit for permanent injunction was not maintainable in the absence of the plaintiff's title and possession. Accordingly, the respondents prayed for dismissal of the suit with costs.

On behalf of the defendants, DW-1 Jitendra Kumar Singh was examined, and his examination-in-chief affidavit was also filed. In support of their contentions, appellants-defendants, in their documentary evidences, filed certified copies of the village map of Mouza Achhati for Fasli Year 1415, the Khasra and extracts of the Khatauni, the original Khatauni of Village Achhati for Fasli Years 1415–1420, a photocopy of the Government Order dated 30.06.2004 and other relevant documents were filed.

On the basis of the pleadings of both parties, the Civil Court framed the following issues :

After hearing the learned counsel for the parties and upon perusal of the pleadings, documentary evidence, and oral evidence adduced by the parties, the Civil Court came to the conclusion that the plaintiff is the owner and in possession of the disputed property. The Court further decided the remaining issues in favour of the plaintiff and accordingly decreed the suit with costs of Rs. 3,000/- vide its judgement and decree dated 05.11.2015.

Being aggrieved by the judgment and decree passed by the Civil Court, the appellants assailed the same by filing the first appeal (being Civil Appeal No.63 of 2015) before the Appellate Court on the grounds that the Civil Court failed to frame proper issues, and while deciding the suit, the Civil Court did not consider Gram Panchayat Achhati as a necessary party, and overlooked the provisions of Section 161 of the Zamindari Abolition and Land Reforms Act relating to Gaon Sabha land.

The appellants further contended that Gata No. 112 was pond land and, therefore, no bhumidhari rights could accrue over it under Section 132-A of the Zamindari Abolition and Land Reforms Act, nor could it be transferred or exchanged. They further argued that the exchange order passed under Section 161 of the Act was without jurisdiction. It was also submitted that part of the land had been allotted to the Fire Department and that the plaintiff and her witnesses had admitted the existence of water in the disputed pond. They further contended that the principle of estoppel was wrongly applied to an act prohibited by law, and the relevant judgments of the Hon'ble High Court and the Hon'ble Supreme Court were not properly examined. It was therefore contended that the impugned judgment passed by the Civil Court is arbitrary and liable to be set aside.

The respondents-plaintiffs contended that Gata No. 112 was recorded in the name of Manraj Kunwari, from whom she had lawfully purchased the property for consideration and thereafter raised construction and remained in possession as owner. She relied upon the documentary evidence on record and submitted that the State Government had failed in the earlier proceedings up to the Commissioner, Faizabad, and had not challenged the same before the competent forum. She further contended that the proceedings under Section 161 were lawful and there is no error of law or fact in the impugned judgment. She therefore prayed for dismissal of the appeal.

On the basis of pleadings the Appellate Court framed the following issues :

After hearing the learned counsel for the parties and upon perusal of the pleadings, documentary evidence, and oral evidence adduced by the parties, the Appellate Court came to the conclusion that the order deleting the plaintiff-respondent Samundra Devi's name from the disputed property had been set aside by the Additional Commissioner, Faizabad Division, and her name was consequently restored in the revenue records. Since the said order was not challenged by the appellants before any competent court, it had attained finality. The Appellate Court further found no material irregularity or illegality in the judgment and decree passed by the Civil Court and, accordingly, held that the same was not liable to be set aside. Consequently, the Appeal filed by the appellants has been dismissed vide its judgement and order dated July 30, 2018.

Being aggrieved, the instant second appeal has been preferred by the appellants under Section 100 of the Civil Procedure Code, 1908, challenging the judgement and order passed by the Appellate Court.

While admitting the present Second Appeal, the following substantial questions of law were framed for adjudication :-

Learned counsel for the appellants contended that the disputed land was recorded as pond land belonging to the State and managed by the Gram Panchayat. He further submitted that the respondents had no valid right, title, or possession over the disputed land and suit was not maintainable. The land was wrongly been allotted to their predecessor-in-interest in exchange for the land acquired for construction of a link road, as the same was a pond land which cannot be allotted to a private individual. He further submitted that once it was found that the allotment was incorrect their name was expunged from the revenue Records.

Learned counsel for the appellants further contended that the pond land is a public utility land and may be allotted for any other public utility work. He further placed reliance upon Section 77(2) of the Revenue Code and submitted that the State can allot public utility land except in exceptional cases for any other public utility and for that the land equivalent to that may be allotted and made complete for that public utility purpose. To buttress his argument, he placed reliance on a judgment passed by the Hon'ble Supreme Court in the matter of Jagpal Singh vs. State of Punjab reported in (2011) 11 SCC 396.

Learned counsel for the appellants further contended that the disputed land was recorded as pond land belonging to the State and managed by the Gram Panchayat, and the respondents had no lawful right, title, or interest therein. He further submitted that the revenue entries in favour of the respondents had been canceled pursuant to an inquiry.

He further contended that the pond land cannot be allotted to any private person except in exceptional cases. Since no bhumidhari right can accrue in public utility land so neither it could be allotted nor any exchange could be made. The allotment was made due to some inadvertence, which was later corrected.

Learned counsel for the appellants further submitted that the State is the owner of all pond and other public utility land and the Gaon Sabha being the state local body, is the caretaker of that land. He submitted that no Bhumidhari rights would accrue in the land which is of public utility except for other public utility. He further submitted that neither any allotment nor any exchange could be done for that land which falls under public utility. Hence no question arises of reclaiming the land.

He further contended that the disputed land was recorded as pond land and the respondents had no lawful right, title, or interest therein. It was further argued that the revenue entries in favour of the respondents had been fraudulently obtained and subsequently expunged following an inquiry. He further argued that the appellants could not defeat their lawful rights by merely altering the revenue entries.

Learned counsel for the appellants further contended that the allotment of land for a fire station is not barred in view of the Hinch Lal Tiwari v. Kamala Devi, reported in 2001 (6) SCC 496, which is considered in Jagpal Singh vs. State of Punjab reported in 2011 (11) SCC 396, in which it is considered that the land of Public Utility like pond may be allotted in exceptional cases for other public utility, which is also supported by Section 77(2) of the Revenue Code. He further submitted that the land of a pond can not be allotted to private persons, which is made clear in the Hinch Lal Tiwari (supra).

Learned counsel for the appellants further contended that the name of Smt. Samundra Devi, the predecessor in interest of the respondents, was deleted by DDC (The Competent Court) on 21.9.2007 in reference no.530 prior to filing of the civil suit which is filed on 12.12.2007, hence the question of title was involved in the matter as specifically pleaded in the written statement filed by the appellants/ defendants. So the suit is barred under Section 331 U.P.Z.A. and L.R. Act. He further submitted that it is provided in the statute that the declarations of right in the agricultural land is within the jurisdiction of Revenue Court as per Section 331, Schedule II and Section 229-B of U.P.Z.A. and L.R. Act. He further submitted that the court below had wrongly relied upon the order dated 21.09.2007 passed by Add. Commissioner, Faizabad Division, in revision no. 953 under section 219 of the Uttar Pradesh Land Revenue Act. If the suit is an agricultural land, and if the question of title is involved, the jurisdiction is that of the Revenue court and not of civil court. Hence, the impugned orders are perverse.

Learned counsel for the appellants lastly contended that Section 132 U.P.Z.A. and L.R. Act is very clear that no Bhumidhari rights will accrue in the land which falls under this section, so no question arises of exchange or allotment.

Learned counsel for the respondent vociferously opposed the instant second appeal. At this stage he submitted that none of the questions framed in the instant second appeal constitutes a substantial question of law. The questions which merely seek reappreciation of evidence or reconsideration of the concurrent findings of fact recorded by the courts below do not give rise to any substantial question of law within the meaning of Section 100 CPC.

He further submitted that the scope of a second appeal under Section 100 CPC is confined to the substantial question(s) of law formulated by this Hon’ble Court. The High Court cannot undertake a fresh appreciation of evidence or interfere with concurrent findings of fact merely because another view of the evidence is possible.

He further submitted that a second appeal cannot be converted into a third round of appreciation or reappreciation of evidence merely because another view of the evidence is possible. The jurisdiction under Section 100 CPC is confined to cases involving a substantial question of law. The High Court must therefore first identify and formulate such substantial question of law before interfering with the judgment of the courts below.

He further submitted that it is a settled principle of law that in exercise of jurisdiction under Section 100 CPC, the High Court does not ordinarily interfere with concurrent findings of fact recorded by the courts below. Where the Civil Court and the First Appellate Court have, upon appreciation of the evidence on record, recorded concurrent findings of fact, such findings ordinarily attain finality in second appeal.

He further submitted that interference is permissible only where the concurrent findings are shown to be perverse, based on no evidence, founded upon inadmissible evidence, arrived at by ignoring material evidence, or based upon a misapplication of the law, resulting in a substantial question of law. The Supreme Court has repeatedly reiterated this principle in Hero Vinoth (minor) v. Seshammal, reported in (2006) 5 SCC 545, C. Doddanarayana Reddy v. C. Jayarama Reddy, reported in (2020) 4 SCC 659, and State of Rajasthan v. Shiv Dayal, reported in (2019) 8 SCC 637. Therefore, unless the appellant demonstrates a legally recognised perversity or another circumstance giving rise to a substantial question of law, mere re-appreciation of evidence or the possibility of another factual view cannot furnish a ground for interference under Section 100 CPC.

Heard the learned counsel for the parties and perused the record and the written submissions.

Upon considering the questions formulated in the present second appeal and the submissions advanced by learned counsel for the parties, this Court finds that questions Nos. 2, 7, 8 and 9 raise substantial questions of law requiring detailed examination. These questions concern the legal rights of the parties, the interpretation and application of the relevant statutory provisions, and the legality of the findings recorded by the courts below. The determination of these questions are essential for the proper adjudication of the present appeal. Accordingly, this Court considers it appropriate to examine the aforesaid questions in the light of the pleadings, documentary and oral evidence available on record, the findings of the courts below, and the applicable principles of law. The remaining questions shall be considered, if necessary, in accordance with the outcome of these substantial questions of law.

So far as Question no. 1 is concerned learned counsel for the appellants contended that the disputed land was recorded as pond land belonging to the State and managed by the Gram Panchayat. It was argued that the respondents had obtained fraudulent entries in the revenue records, which were subsequently canceled following an inquiry. The appellants further submitted that the respondents had no valid right, title, or possession over the disputed land and suit was not maintainable. Per contra learned counsel for the respondents submitted that the disputed land was lawfully allotted to their predecessor-in-interest in exchange for the land acquired for construction of a link road. The allotment was approved by a resolution dated 15.10.1988, and the predecessor’s name was duly mutated in the revenue records. Subsequently, the respondents purchased the land through a registered sale deed dated 14.05.1990 and were recorded as bhumidhars with transferable rights. It was argued that the appellants could not dispossess the respondents merely by expunging their names from the revenue records without adopting the procedure prescribed by law for cancellation of the allotment or eviction.

Upon considering the arguments advanced by learned counsel for the parties and the evidence available on record, this Court is of the considered opinion that the appellants cannot evict the respondents merely by expunging their names from the revenue records. The disputed land was allotted to the respondents’ predecessor-in-interest in exchange for the land utilized for the construction of a link road, and the respondents subsequently acquired the same through a registered sale deed dated 14.05.1990. The respondents’ names were also recorded in the revenue records as bhumidhars with transferable rights. Mere correction or expunction of revenue entries cannot, by itself, extinguish the respondents’ established legal rights or authorize their dispossession. Therefore, the appellants could not lawfully dispossess the respondents merely by deleting their names from the revenue records. Accordingly, the issue is answered in favour of the respondents and against the appellants.

With regard to Question No. 3, Learned counsel for the appellants contended that the disputed land was recorded as pond land belonging to the State and managed by the Gram Panchayat, and that the respondents had no lawful right, title, or interest therein. It was further submitted that the revenue entries in favour of the respondents had been cancelled pursuant to an inquiry. Conversely, learned counsel for the respondents argued that their predecessor-in-interest’s original land had been utilized for the construction of a link road without payment of compensation, and alternative land was allotted in exchange thereof by a resolution dated 15.10.1988. Subsequently, the respondents purchased the allotted land through a registered sale deed dated 14.05.1990. Upon considering the rival submissions and the evidence on record, this Court finds that the respondents cannot be deprived of both their original land and the alternative land merely by expunging their names from the revenue records. Any cancellation of the allotment or dispossession must be undertaken in accordance with the procedure established by law. In view of the foregoing discussion, this Court holds that the respondents cannot be deprived of their lawful rights over the disputed property. Accordingly, the issue is answered in favour of the respondents and against the appellants.

With regard to Question No. 6, the appellants contended that the disputed land was recorded as pond land and that the respondents had no lawful right, title, or interest therein. It was further argued that the revenue entries in favour of the respondents had been fraudulently obtained and subsequently expunged following an inquiry. Conversely, learned counsel for the respondents submitted that the disputed land was lawfully allotted to their predecessor-in-interest in exchange for the land utilized for road construction and was subsequently purchased by them through a registered sale deed dated 14.05.1990. It was argued that the appellants could not defeat their lawful rights by merely altering the revenue entries. Upon consideration of the arguments and evidence on record, this Court finds that the appellants have failed to establish the essential ingredients of estoppel. Accordingly, the issue is decided against the appellants and in favour of the respondents.

So far as Question Nos. 2, 7 and 9 are concerned, all are interconnected and, therefore, are being answered together. Learned counsel for the appellant submitted that the State, being the recorded owner of the land in question, has all the rights of an absolute proprietor and, therefore, is competent to deal with the land in any manner, including by exchanging the pond land with another parcel of land. It was further contended that once an alternative piece of land is made available in lieu of the pond, there can be no legal impediment in permitting such exchange, particularly when the land vests in the State.

The submission, however, proceeds on the assumption that an existing pond is merely an ordinary parcel of land belonging to the State. Such an assumption is legally untenable. The character of the land as an existing pond is of decisive significance. A pond is not merely land with a particular revenue entry; it is a natural water body and a community resource, having environmental, ecological and public utility dimensions. The State cannot claim an unfettered proprietary dominion over such a resource merely because the land stands recorded in its name.

The State, while dealing with natural resources, acts not as an absolute private proprietor but as a trustee and custodian of resources held for the benefit of the community. The power of the State to deal with land is consequently subject to the nature and character of the resource and to the constitutional and public-law obligations governing its preservation. Ownership, even where vested in the State, cannot by itself confer an unrestricted right to destroy, alienate, divert or exchange a natural water body.

The mere provision of another parcel of land in exchange cannot, by itself, extinguish the public and ecological character of an existing pond. A natural water body is not rendered legally interchangeable with an ordinary parcel of land merely because the State chooses to offer or receive another piece of land in exchange. The question, therefore, is not simply whether the State owns the land, but whether, consistently with its fiduciary obligation and the applicable environmental and public-law principles, it can alter the character of an existing pond by treating it as an ordinary proprietary asset.

The Supreme Court in Hinch Lal Tiwari (supra), expressly held that the material resources of the community, including forests, tanks and ponds, are “nature’s bounty” and maintain a delicate ecological balance. The Court held that such resources require protection for a proper and healthy environment and that the authorities, instead of permitting a pond to fall into disuse, ought to develop and restore it.

The principle laid down in Hinch Lal Tiwari (supra) is particularly significant where the authorities seek to rely upon the degradation, drying up or altered physical condition of a pond. The State cannot take advantage of the very degradation of the water body which it is under a duty to protect. The Supreme Court directed restoration of the pond and required the State authorities to develop and maintain it as a recreational spot for the villagers.

The Public Trust Doctrine imposes a special obligation upon the State in respect of natural resources meant for public use and enjoyment. The State does not hold such resources merely as an unrestricted private proprietor; its powers are subject to its obligation to protect the resource for the public.

In M.C. Mehta v. Kamal Nath, reported in (1997) 1 SCC 388, the Supreme Court recognised the Public Trust Doctrine and the obligation of the State in relation to natural resources intended for public use and enjoyment. The doctrine proceeds on the principle that certain resources are held for the benefit of the public and cannot be dealt with solely for the proprietary convenience of the State.

The same constitutional principle has subsequently been applied in the Supreme Court’s environmental jurisprudence, including cases concerning forests, water bodies and other natural resources. Thus, the State’s authority over a natural resource is necessarily subject to the duty to protect the resource and the public interest attached to it.

A pond is not merely the water standing upon a particular piece of land. It performs important ecological functions, including groundwater recharge, preservation of water availability, support of aquatic life, maintenance of ecological balance and protection of the local environment. Its value therefore cannot be measured merely by the market value or area of the land upon which the pond exists.

An alternative pond does not, by itself, justify destruction of an existing pond. The proposition assumes even greater significance in the present case because the justification offered by the authorities is that the existing pond may be utilised for another public purpose and an alternative parcel of land may be provided for creating another pond.

The Supreme Court in Jitendra Singh v. Ministry of Environment & Others, reported in (2020) 20 SCC 581, has considered a substantially relevant situation concerning the allotment of local ponds, where the Greater Noida Industrial Development Authority sought to justify the action, inter alia, on the ground that it was developing bigger alternative water bodies. The Supreme Court allowed the appeal and dealt with the protection of village ponds as common water bodies.

Therefore, the mere offer of an alternative parcel of land or the proposal to create another water body cannot, by itself, be treated as conferring an unrestricted power upon the State to destroy or divert an existing community pond. The existing water body has its own ecological and community value, and its substitution cannot be justified merely by a comparison of the area of the two parcels.

This court in the matter of Shamli Devi vs. State of U.P., reported in 2008 (4) ADJ 578, has held that even if some portion or the whole pond becomes dry, it does not cease to be a pond and even Gaon Sabha cannot allot the pond for any other purposes except fisheries purposes to any one vide Hinch Lal Tiwari (supra).

Similarly, in Ramadhar and Ors. vs. Collector and ors, reported in 2011 (3) ADJ 881, this Court while taking note of Hinch Lal Tiwari (supra), has held that if some plot of land was pond at the time of Zamindari abolition in U.P. then it continues to be pond and the fact that it has become plain land or has been converted into plain land does not rob it of its character of being pond and it cannot be allotted to any one for agricultural or residential/commercial purpose and the State authorities must convert the same into the shape of a pond.

It is well settled that the State is the trustee of all natural resources which, by nature are made for public use and enjoyment. The State as a trustee is under the legal duty to protect the natural resources. The State, while exercising control over a pond, acts subject to its fiduciary/public-trust obligation to protect the natural resource and the rights of the community associated with it.

In Support India Welfare Society v. State of U.P. & Ors., PIL No. 1474 of 2019, reported in 2019 SCC OnLine All 5874 decided on 16.09.2019, the Division Bench of the Allahabad High Court dealt specifically with the protection and restoration of ponds/water bodies and held as under-

(emphasis added)

In the matter of Jagpal Singh v. State of Punjab, reported in (2011) 11 SCC 396, the Hon’ble Supreme Court has issued directions to all the State Governments in the country for the eviction of the illegal/unauthorized occupants of the Gram Sabha's land. The directions issued by the Supreme Court read as under :

(emphasis added)

This Court also, in a large number of cases, has considered the matter relating to ponds. In Ram Kumar and Anr. v. Zila Adhikari/District Deputy Director of Consolidation, Muzaffarbagar and Anr., reported in 2002 (2) AWC 1577 All, this Court has held as under:

(emphasis added)

In the matter of Shardadeen v. State of U.P. and ors, reported in (2005) 1 AWC 919 All, this Court has held as under:

(emphasis added)

In Iqbal Ahmad and others v. Deputy Director of Consolidation, Deoria and others, reported in (2005) SCC OnLine All 2257, this Court while considering the directions of the Hon’ble Supreme Court in Hinch Lal Tiwari (supra) to maintain Ponds, Water Channels, Pokhras, Garhi (land covered by water) etc. recorded in the revenue records on the date of vesting as covered by section 132 of the U.P.Z.A. and L.R. Act, has directed to comply the same forthwith for the purpose of restoring and maintaining the land covered by water in the interest of public in order to maintain ecological balance end protecting environment. This court also pointed out the fact that for the purpose of maintaining ecological balance and protecting environment some special measures needs to be taken on the grass route level so that directions of the Supreme Court in the matter of Hinch Lal Tiwari (supra) be complied with. Considering the importance, this court directed the State Government to make a thorough investigation of each village of each District throughout State of Uttar Pradesh in respect of Forests, Tanks, Ponds and Garhi, Water Channel and Riverbed etc. on the basis of the revenue records of the date of vesting, i.e., 1st July, 1952 by constituting a Special Investigation Team consisting of revenue authorities and other concerned officials and Environmentalists and take appropriate steps for the compliance of the directions of Hon’ble Supreme Court in the matter of Hinch Lal Tiwari (supra).

In the matter of Ram Naumee v. State of U.P. and oths., reported in (2011) 5 All LJ 721, this Court held thus:

(emphasis added)

The principle emerging from the aforesaid line of authority is that the subsequent drying up, degradation, encroachment or alteration of the physical condition of a pond does not confer upon the authorities a licence to treat the land as ordinary disposable property. Rather, the obligation is to protect and, where necessary, restore the water body.

In the present case, the State cannot justify utilisation of the existing pond merely by asserting that another parcel of State/Gaon Sabha land will be provided and a new pond will be created there. The existing pond is itself a community natural resource. Its ecological functions, historical existence and public utility cannot be reduced to a mere calculation of acreage.

The State cannot first destroy or divert an existing natural resource and then contend that the public interest has been protected because an alternative parcel has subsequently been earmarked. The question is not merely whether another piece of land can be converted into a pond; the question is whether the State possesses lawful authority to destroy or divert the existing community water body in the first place.

Accordingly, an existing pond is not merely a parcel of State-owned land. It is a natural and community resource and an ecological bounty. The State holds such a resource subject to a public-trust obligation for the benefit of the present and future generations. The State therefore cannot treat the pond as its ordinary proprietary asset and substitute it merely by offering another parcel of land. Therefore, construction of Fire station on a pond land and its exchange under section 161 UPZA & LR Act, 1950 as well is barred by the ratio laid down by the Hon’ble Supreme Court in the matter of Hinch Lal Tiwari (supra). The answer to Question nos. 2, 7 and 9 is, therefore, against the appellant.

So far as Question no. 8 is concerned, recently, this High Court in Second Appeal No. 1035 of 1996 Decided on 21.08.2024 Mangoo Singh and Others v. Ram Autar, reported in (2024) 5 All Lj 786, has considered the law relating to the applicability of Section 331 of the U.P. Zamindari Abolition and Land Reforms Act, 1950. While examining the maintainability of the suit, the Court considered, inter alia, the principles laid down in Ram Awalamb v. Jata Shanker, 1968 AWR 731; Smt. Bismillah v. Janeshwar Prasad, AIR 1990 SC 540; Church of North India v. Lavajibhai Ratanjibhai, (2005) 10 SCC 760; Narendra Kumar Mittal and Others v. M/s Nupur Housing Development Pvt. Ltd. and Another, (2019) 144 RD 785, Shri Ram and Another v. Ist Additional District Judge and Others, (2001) 3 SCC 24 and Kamla Prasad and Others v. Krishna Kant Pathak and Others, (2007) 4 SCC 213. After considering the aforesaid authorities, the Court held that the suit in question was maintainable and was not barred by Section 331 of the U.P. Zamindari Abolition and Land Reforms Act, 1950. In the light of the law laid down in Mangoo case (supra) the suit filed by respondent was maintainable before the civil court. Question No. 8 is, accordingly, answered against the appellant and in favour of the respondents.

The remaining questions need not be examined separately, as they do not require further adjudication in view of the findings recorded above.

According present second appeal being sans merit, stands dismissed.