Holding

Pond land cannot be allotted as an abadi site; the cancellation of the allotment is valid.

Summary

The dispute concerned the allotment of 15 biswas of a pond (Talab) in village Ugapur to ten members of a Scheduled Caste family for house sites under the UP Zamindari Abolition and Land Reforms Act, 1950. Objections were raised, the Additional Collector cancelled the allotment, and the Commissioner upheld the cancellation; however, the Allahabad High Court partially restored the allotment for 10 biswas. The Supreme Court examined whether pond land falls within the categories of land that may be earmarked for abadi sites under Section 122C(1) of the Act. It held that the land referred to in clause (i) of Section 117(i) – which is eligible for abadi site allocation – does not include tanks, ponds, or similar water bodies listed in clause (vi). Consequently, the High Court's order was set aside and the cancellation of the allotment was restored. The respondents were ordered to vacate the land within six months, and the State was directed to restore and maintain the pond for ecological and public purposes.

Issues considered

Whether land classified as a pond under Section 117(vi) of the UP Zamindari Abolition and Land Reforms Act, 1950 can be allotted as an abadi site under Section 122C(1).
Whether the respondents qualify as beneficiaries under the categories specified in Section 122C.

Legislation cited

U.P. Zamindari Abolition and Land Reforms Act, 1950s. 117(i), s. 117(vi), s. 122C(1), s. 4

Subjects

land reformpond allocationabadi siteScheduled Castesenvironmental protectionArticle 21U.P. Zamindari Abolition Actecological balance

Judgment

HINCH LAL TIWARI A
v.

- KAMALA DEVI AND ORS.

JULY 25, 2001

(SYED SHAH MOHAMMED QUADRI AND S.N. PHUKAN, JJ.] B

UP. Zamindari Abolition and Land Reforms Act, 1950/U.P. Zwnindari
. Abolition and Land Reforms Rules, 1950.

Ss. 117(/)(i), (vi) and 122C(l)/Rule 115-P-Allotment of/and/or housing C
site to Scheduled Castes/Scheduled Tribes etc.-Pond area allotted to
respondents-Objection to-Additional Collector as also Commissioner
cancelled allotment-High Court in writ petition confirming allotment in respect
ofpart ofpond area-Held, subject matter of allotment of house sites is lands
referred to in clause (i) of sub-section (I) and not tanks, ponds, etc. referred D
to in clause (vi) of sub-section (I) of S. 117-0rder of High Court cannot be
sustained-There is concurrent finding that area covered by the pond varies
in rainy season-No part of it could have been allotted to respondents-
Respondents shall vacate the land.

Ecology-Pond belonging to Gram Sabha-Allotment of pond area to E
members of Scheduled Caste for house site-Held, material resources of
community like forests, tanks, ponds, hillock, mountain etc. maintain delicate
ecological balance they need to be protected for a proper and healthy
environment-Government having noticed that a pond is falling in disuse,
should have bestowed their attention to develop the same-State would restore F
the pond, develop and maintain it.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4787 of
2001.

From the Judgment and Order dated 16.8.2000 of the Allahabad G
High Court in C.M.P. No. 26572 of 1999.

·Ranjit Kumar, Pramod Swarup, B.M. Sharma, H.L. Srivastava, C.M.
Patel and T.N. Singh for the Appellant.

Dinesh Dwivedi, Kamlendra Misra, R.C. Verma, Asho!< Sharma and
23 H
24 SUPREME COURT REPORTS [2001] SUPP. I S.C.R.

A D.K. Garg for the Respondents.
The following Order of the Court was delivered :

Leave is granted. -
B 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 I to I0, on August 16, 2000.

The dispute relates to plot No. 774-KA measuring 15 biswas situated
m village Ugapur, Talluka Asnao, District Sant Ravidas Nagar (U.P.)
C (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 I to I 0 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.
D 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
I to I 0. On February 25, 1999 the Additional Collector cancelled the allotment
E 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 oJ Judicature at Allahabad. By the impugned order
the High Court partly allowed the Writ Petition of confirming the allotment
F in respect of IO biswas and cancelling in respect of 5 biswas, which led to
filing of this appeal.

Mr. Ranj it Kumar, the learned senior counsel for the appellant
vehemently contends that the power of allotment of the land is available in
G 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 I to I 0 who do not fall in
the specified categories of the beneficiaries under the Rules. He invited our
attention to Section I22C( I) which specifies the classes of land which can be
earmarked for the provisions of abadi sites and pointed out that pond (Talab)
H area is not among them.

•
H.L. TIW ARI v. KAMALA DEVI 25

Mr. Dwivedi, the learned senior counsel appearing for the official A
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 I to I 0 and that the order of cancellation of allotment is justified
and valid. Mr. Garg the learned counsel appearing for respondents I to I 0
submits that Lekhpal forwarded proposals for allotment of house sites in the B
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.

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 C
I 22C( I) of the Act?

I 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 land in gaon sabha.
Clause (vi) of the said Section which is relevant for our purpose reads thus:
D

"117. Vesting of certain lands, etc. in Gaon Sabhas and other local
authorities.

(I) At any time after the publication of the notification referred to in E
Section 4, the State Government may, by general or special order to
be published in the manner prescribed, declare that as from a date to
be specified in this behalf, all or any of the following things, namely-

(i) to (v) ••• ••• •••
(vi) tanks, ponds, private ferries, water channels, pathways and abadi F
sites,

which had vested in the State under this Act shall vest in a Gaon
Sabha or any other local authority established for the whole or part

--
of the village in which the said things are situate, or partly in one
such local authority (including a Gaon Sabha) and partly in another: G
Provided that it shall be lawful for the State Government to make
the declaration aforesaid subject to such exceptions and conditions as
may be specified in such order."

A perusal of the provision extracted above makes it clear that tanks,
\
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26 SUPREME COURT REPORTS (2001) SUPP. I S.C.R.

A ponds, private ferries, water channels, pathways and abadi sites which had
vested in the State under Section 4 of the Act shall vest in the gaon sabha
or any other local authority established for the whole or any part of the
village in which the said things are situate, or partly in one such local authority
and partly in another, from the date specified in the Notification issued by the
B Government in this behalf, Section 122 authorises the Assistant Collector, in
charge of the Sub-Division to earmark the classes of land noted hereunder
either on his own motion or on the resolution of the Land Management
Committee, for the members of the Scheduled Castes and the Scheduled
Tribes and agricultural labourers and village artisans. It would be apt to refer
to clause (a) of sub-section (I) of Section 122C which reads as follows:
c "/ 22C. Allotment of land for housing site for members of Scheduled
Castes, agricultural labourers etc.

-
(I) The Assistant Collector in charge of the sub-division of his own
motion or on the resolution of the Land Management Committee,
D may eannark any of the following classes of land for the provision
of abadi sites for the members of the Scheduled Castes and the
Scheduled Tribes and agricultural labourers and village artisans-

(a) lands referred to in clause G) of sub-section (i) of Section
117 and vested in the Gaon Sabha under that section."
E And the said clause (i) runs as follows:

"Land whether cultivable or otherwise, except lands for the
....,.,
time being comprised in any holding or grove."

The tenn "land" is defined in Section 3, sub-section ( 14) to mean land
F held or occupied for purposes connected with agriculture, horticulture or
animal husbandry which includes pisciculture and poultry fanning. The
definition excluded land dealt with in Sections 109, 143, 144 and Chapter 7.
We may note that we ate not concerned with the excepted categories. From
a combined reading of the provisions afore-mentioned it is plain that the
-
G

-
subject matter of allotment of house sites, is lands referred to in clause (i) of
sub-section (I) and not tanks, ponds private ferries, water channels, pathways
referred to in clause (vi) of sub-section (I) of Section 117 of the Act. It
appears to us that due to inappropriate drafting the expression "and abadi
sites) is wrongly placed in clause (vi).

H It would not be out of place to notice here that Section 122C enumerates
H.L. TIW ARI v. KAMALA DEVI 27

the categories of persons who are entitled to allotment of land and they are A
(1) scheduled castes, (2) scheduled tribes, (3) agricultural labourers and (4)
village artisans. For disposal of this case it is unnecessary to go into the
question whether in a case of allottable land, the said respondents answer the
description of the beneficiaries specified in sub-section (3) of Section 122C
of the Act.
B
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, C.
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 D ·.
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 E
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 abadi site to any
person."
F

- 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. G
There is concurrent finding that a pond exists ind 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 H
28 SUPREME COURT REPORTS (2001) SUPP. I S.C.R.

A 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 whicJi would, on one hand, have prevented ecological disaster and
B 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
C Court, restore the order of the Additional Collector dated February 25, 1999
confirmed by the Commissioner on March 12, 1999. Consequently,
respondents I to I 0 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 I 0 do not vacate the land within the said period the official
D 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
villages. Further it will also help iu maintaining ecological balance and
E 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.

R.P. Appeal allowed.

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