1

A.F.R.

Court No. - 21

Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 1474 of 2019

Petitioner :- Support India Welfare Society

Respondent :- State Of U P And 7 Others

Counsel for Petitioner :- Shree Prakash Giri

Counsel for Respondent :- C.S.C.,Shyam Mani Shukla,Suresh C.

Dwivedi

Hon'ble Pradeep Kumar Singh Baghel,J.

Hon'ble Piyush Agrawal,J.

This Public Interest Litigation (PIL) has been instituted by the

petitioner, who claims to be the Chairman of the Legal Cell of the

registered Society, “Support India Welfare Society”. One of the objects

of the Society is to take up the cause of public importance for its

redressal for the marginal sections of the society.

The grievance raised in this Public Interest Litigation is in respect

of illegal encroachments over pond over Plot Nos. 253 & 254 situated at

Village – Rajpur, Tehsil & District – Agra by the land mafias in

collusion with the local officials. The said plots are intended to be used

for the construction of multi-storey building by the powerful and

influential persons of the city. It is stated that in the District – Agra, the

land mafias are indulged in encroachments of the public utility land,

particularly, ponds/water bodies. The petitioner has brought on the

record a copy of the revenue record to demonstrate that Plot Nos. 253 &

254 are recorded as pond (Pokhar).

It is stated that the petitioner had made several representations to

the concerned authorities and when no action was taken, the petitioner

filed Public Interest Litigation No. 4502 of 2018, which was disposed of

by this Court vide order dated 4

th

October, 2018, directing the District

Magistrate, Agra to take appropriate action, in accordance with law.

Pursuant to the order of this Court, the petitioner submitted a

2

detailed representation on 22/27

th

October, 2018 before the District

Magistrate, Agra. The District Magistrate, Agra directed to conduct an

inquiry and it was found that Plot Nos. 253 area 0.1150 hectare has been

encroached upon by the RCL Public School and a direction was issued

to the Nagar Nigam, Agra for the removal of the encroachment and to

restore the pond. It is stated that in spite of the order of the District

Magistrate, Agra dated 6

th

May, 2019, no effective step has been taken

for the removal of the encroachment. The petitioner has brought on the

record some of the documents to indicate that the encroachment still

exist.

We have heard learned counsel for the petitioner and learned

standing counsel for the State.

The learned counsel for the petitioner submits that the Supreme

Court, in a large number of judgements, has issued directions to all the

Chief Secretaries of the States for removal of the encroachments from

the water bodies. Learned counsel for the petitioner has placed reliance

on the judgment in the case of Hinch Lal Tiwari Vs. Kamala Devi &

Others

1

, Jagpal Singh & Ors. Vs. State of Punjab & Ors.

2

, Jagat

Narain And Others Vs. State of U.P. And Others

3

, and P.S. Shisodia

Vs. Board of Revenue Alld.

4

.

This Court also, following the judgements of the Supreme Court,

has issued directions to the authorities for the compliance of the

judgements of the Supreme Court.

It is apposite at this stage to set out the relevant statutory

provisions contained in Uttar Pradesh Zamindari Abolition & Land

Reforms Act, 1950 and the executive orders, which deals with the

Ponds/water bodies in this state.

1

(2001) 6 SCC 496

2

AIR 2011 SC 1123

3

2015 (3) ADJ 466 (DB)

4

2008 (1) R.D. 15.

3

“Section 4: Vesting of estates in the State:- (1) As soon as may be after the

commencement of this Act the State Government may, by notification,

declare that as from a date to be specified, all estates situate in Uttar

Pradesh shall vest in the State and, as from the beginning of the date so

specified (hereinafter called the date of vesting), all such estates shall

stand transferred to and vest, except as hereinafter provided, in the State

free from all encumbrances.

(2) It shall be lawful for the State Government, if it so considers necessary,

to issue, from time to time, the notification referred to in sub-section (1) in

respect only of such area or areas as may be specified and all the

provisions of sub-section (1) shall be applicable to and in the case of every

such notification.

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

authorities.-

1) At any time after the publication of the notification referred to in 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) lands, whether cultivable or otherwise, except lands for the time

being comprised in any holding or grove,

(ii) forests,

(iii) trees, other than trees in a holding on the boundary of a holding

or in a grove or abadi,

(iv) fisheries,

(v) hats, bazars and melas, except hats, bazars and melas held on

lands to which the provisions of clauses (a) to (c) of sub-section (1) of

Section 18 apply or on sites and areas referred to in Section 9, and

(vi) tanks, ponds, private ferries, water channels, pathways and abadi

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:

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].

(2) Notwithstanding anything contained in this Act or in any other law for

the time being in force, the State Government may, 4[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 things specified in

clauses (i) to (vi) of sub-section (1) which after their vesting in the State

under this Act had been vested in a Gaon Sabha or any other local

authority, either under this Act or under Section 126 of the Uttar Pradesh

4

Nagar Mahapalika Adhiniyam, 1959, shall vest in any other local authority

(including a Gaon Sabha) established for the whole or part of the village in

which the said things are situate.

(3) Where any declaration has been made under sub-section (1) or sub-

section (2) vesting any of the things specified in clauses (i) to (vi) of sub-

section (1) in any Gaon Sabha, and the village or the part of the village in

which that thing is situate lies outside the circle of the Gaon Sabha, such

Gaon Sabha or its Land Management Committee shall in respect of that

thing perform, discharge and exercise the functions, duties and powers

assigned, imposed or conferred by or under this Act or the U.P. Panchayat

Raj Act, 1947, on a Gaon Sabha or a Land Management Committee, as the

case may be, as if that village or part of village also lay within that circle.

(4) Where a declaration has been made under sub-section (1) or sub-

section (2) vesting any of the things specified in clauses (i) to (vi) of sub-

section (1) in a local authority other than a Gaon Sabha and the village or

the part of village in which the thing is situate is outside the limits of such

local authority, or where after any declaration is made under sub-section

(1) or sub-section (2), the thing vests or, as the case may be, had vested in a

Nagar Mahapalika under Section 126 of the Uttar Pradesh Nagar

Mahapalika Adhiniyam, 1959, such local authority shall in respect of that

thing perform, discharge and exercise the functions, duties and powers

assigned, imposed or conferred by or under this Act or the U.P. Panchayat

Raj Act, 1947, on a Gaon Sabha or Land Management Committee:

Provided that the local authority shall in the performance, discharge and

exercise of its functions, duties and powers under this sub-section follow

such procedure as may be prescribed.

(5) Where any of the things specified in clauses (i) to (vi) of sub-section (1)

is vested in a local authority other than a Gaon Sabha the provisions of

Sections 126 and 127 shall, subject to such exceptions and modifications, if

any, as the State Government may specify in this behalf [by general or

special order to be published in the manner prescribed] apply, mutatis

mutandis, to such local authority.

(6) The State Government may at any time, [by general or special order to

be published in the manner prescribed], amend or cancel any [declaration,

notification or order] made in respect of any of the things aforesaid,

whether generally or in the case of any Gaon Sabha or other local

authority, and resume such thing, and whenever the State Government so

resumes any such things, the Gaon Sabha or other local authority, as the

case may be, shall be entitled to receive and be paid compensation on

account only of the development, if any, effected by it in or over that things:

Provided that the State Government may after such resumption make a

fresh declaration under sub-section (1) or sub-section (2) vesting the thing

resumed in the same or any other local authority including a Gaon Sabha),

and the provisions of sub-sections (3), (4) and (5), as the case may be, shall

mutatis mutandis, apply to such declaration.”

Regard being had to the fact that the Commissioner – cum –

Secretary of Board of Revenue, U.P. has issued a circular dated 4

th

5

October, 2012. In compliance of the Judgements of the supreme Court

and with reference to of this court in

The relevant part of the circular reads as under:

"bl lEcU/k esa eq>sa ;g dgus dk funs'k gqvk gS] fd xzke lHkkvksa dh Hkwfe

ij rkykc@iks[kj@pkjkxkg ,oa dfczLrku ij voS/k dCtk@ vfrdze.k

dks gVokus ds lEcU/k esa izeq[k lfpo] jktLo foHkkx] mRrj izns'k 'kklu

dh v/;{krk esa cgqlnL;h; lfefr dk xBu fd;k x;k gS ¼Nk;k izfr

layXu½A vr% vuqjks/k gS fd mDr xfBr lfefr dk izpkj izlkj vius {ks+=

ds nSfud lekpkj i=ksa@dscy pSuyksa ij fu;fer vk/kkj ij djkuk

lqfuf'pr djsa] rFkk vius vius e.My @ tuin ds leLr xzke lHkkvksa

ds lnL;ksa ls voS/k dCtk @ vfrdze.k dh f'kdk;rsa izkIr dj

le;c) :i ls tkWp dh dk;Zokgh lqfuf'pr dj d`r dk;Zokgh dh izxfr

ls vius e.Myk;qDr ds ek/;e ls ifj"kn dks ikf{kd :i ls miyC/k

djkuk lqfuf'pr djsa "

As can be seen from the above statutory provisions, it is

legislative intent to protect the water bodies as they are necessary to

maintain the environmental balance.

The growing population and unrestricted water extraction has resulted

serious consequences for human life. The Central and the State

Governments have floated several schemes for ground water recharge.

A survey of the law on their subject would be necessary and can

be started with- Hinch Lal Tiwari (supra). This case arose from a

judgement of this Court. The Supreme Court elaborately considered the

relevant provisions of the Uttar Pradesh Zaimindari Abolition & Land

Reforms Act, 1950 and held as under:-

“8. A perusal of the provision extracted above makes it clear that tanks,

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 Government in this behalf. Section 122-C

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

6

sub-section (1) of Section 122-C which reads as follows :

"122-C. Allotment of land for housing site for members of Scheduled

Castes, agricultural labourers etc. - (1) The Assistant Collector in

charge of the sub-division of his own motion or on the resolution of

the Land Management Committee, may earmark 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 (i) of sub-section (1) of Section 117

and vested in the Gaon Sabha under that section;"

And the said clause (i) runs as follows :

" 117. (1)(i) lands, whether cultivable or otherwise, except lands for

the time being comprised in any holding or grove,”

9. The term" land" is defined in Section 3, sub-section (14) to mean land

held or occupied for purposes connected with agriculture, horticulture or

animal husbandry which includes pisciculture and poultry farming. The

definition excludes land dealt with in Sections 109, 143, 144 and Chapter

7. We may note that we are not concerned with the excepted categories.

From a combined reading of the provisions aforementioned, it is plain

that the subject-matter of allotment of house sites is lands referred to in

clause (i) of sub-section (1) and not tanks, ponds, private ferries, water

channels, pathways referred to in clause (vi) of sub-section (1) 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).

13. It is important to notice that the material resources of the community

like forests, tanks, ponds, hillock, mountain etc. are nature's bounty. They

maintain delicate ecological balance. They need to be protected for a

proper and healthy environment which enables people to enjoy a quality

life which is the essence of the guaranteed right under Article 21 of the

Constitution. The Government, including the 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 which would,

on one hand, have prevented ecological disaster and on the other

provided better environment for the benefit of the public at large. Such

vigil is the best protection against knavish attempts to seek allotment in

non-abadi sites.”

In State of Orissa Vs. Government of India

5

, considering the

importance of water, it has been observed that “the right to get water is a

part of right to life guaranteed by Article 21 of the Constitution.

In Meghwal Samaj Shiksha Samiti Vs. Lakh Singh

6

, a village

pond land was allotted to an educational institute. The High Court set

aside the allotment order and held that pond land can not be allotted for

5

(2009) 5 SCC 492

6

(2011) 11 SCC 800

7

any other purpose. The matter was carried to the Supreme Court. The

Court, following the decision of Hinch Lal Tiwari (supra), rejected the

plea that land was allotted for other public purpose, to build a Hostel for

students of backward class.

In Jagpal Singh (supra), the Supreme Court has taken a judicial

notice that since independence, in large part of the country,

unscrupulous persons using muscle powers, money power and political

influence, they have systematically encroached on the public utility

lands. The Court has also observed that this has been done with the

active connivance with the State – authorities and local power vested

interests and Gundas. The Court, following its earlier judgement in

Hinch Lal Tiwari (supra), which has also been followed by the Madras

High Court in L. Krishnan Vs. State of Tamil Nadu

7

, has further

observed that most of the ponds in the country have been filled with

earth and their original character has been destroyed. The relevant part

of the judgement reads as under:-

“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) 9 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.

18. 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.

20. In Uttar Pradesh the U.P. Consolidation of Holdings Act, 1954 was

widely misused to usurp Gram Sabha lands either with connivance of the

Consolidation Authorities, or by forging orders purported to have been

passed by Consolidation Officers in the long past so that they may not be

compared with the original revenue record showing the land as Gram

Sabha land, as these revenue records had been weeded out. Similar may

have been the practice in other States. The time has now come to review all

these orders by which the common village land has been grabbed by such

fraudulent practices.

21. For the reasons given above there is no merit in this appeal and it is

7

2005 (4) CTC 1 (Madras)

8

dismissed.

The 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:-

22. Before parting with this case we give directions to all the State

Governments in the country that they should prepare schemes for eviction of

illegal/ unauthorized occupants of Gram Sabha/Gram

Panchayat/Poramboke/Shamlat land and these must be restored to the

Gram Sabha/Gram Panchayat for the common use of villagers of the

village. For this purpose the Chief Secretaries of all State

Governments/Union Territories in India are directed to do the needful,

taking the help of other senior officers of the Governments. The said scheme

should provide for the speedy eviction of such illegal occupant, after giving

him a show cause notice and a brief hearing. Long duration of such illegal

occupation or huge expenditure in making constructions thereon or political

connections must not be treated as a justification for condoning this illegal

act or for regularizing the illegal possession. Regularization should only be

permitted in exceptional cases e.g. where lease has been granted under

some Government notification to landless labourers or members of

Scheduled Castes/Scheduled Tribes, or where there is already a school,

dispensary or other public utility on the land."

This Court also, in a large number of cases, has considered the

matter relating to ponds. In Ram Kumar Vs. Zila Adhikari/District

Deputy Director of Cosolidation

8

, this Court has held as under:-

“22. However, while allotting the land of Gaon Sabha, it has to be kept in

mind that the land of Gaon Sabha is basically for public purpose, public

in general and the society has interest in the public land. Public land

should not be allotted only to serve individual interest, protection of

ponds, tanks, mountains have been held to be necessary for environment

protection and pollution control. Thus, the consolidation authorities while

allotting the Gaon Sabha land should normally desist from allotting

ponds, tanks, mountains, land in nature of forest”

In Shardadeen Vs. State of U.P.

9

, this Court has held as

under:-

“8. Ponds are lifelines of villages. One of the reasons of alarming

decrease in water level of the underground water particularly during

recent years is drying up of the ponds. The ponds have become dry either

due to disuse or by active efforts of interested persons by filling the same

with earth. There are some authorities of this Court which have held that

no person can mature his right through adverse possession over Gaon

8

2002 (2) AWC 1577

9

(2005 1 AWC 919

9

Sabha land as under U.P.Z.A. & L.R. Act and the Rules there is no

limitation prescribed for filing suit by Gaon Sabha for ejectment of

trespasser. In view of this if a person is in unauthorized occupation of a

plot entered in revenue record as pond or any part thereof, he cannot

mature his title by prescription however long his possession may be. In

view of the aforesaid Hinch Lal Tewary authority of Supreme Court plot

entered as pond in the revenue records even if it has ceased to be a pond

or any portion thereof cannot be allotted to any person. No authority can

pass order permitting or recording change of user of pond. In view of this

even if a plot which was entered as pond after Zamindari Abolition and

vested in State/Gaon Sabha or any portion thereof has been allotted to

any person then the said allotment is void and liable to be ignored. There

is therefore, no legal bar in cancelling the entry in revenue record of such

plot or any part thereof in favour of a person after hearing him.

9. It is expected that the authorities particularly Collectors and Deputy

Collectors will initiate special drive to get such plots completely vacated

which were entered as ponds belonging to State/Gaon Sabha just after

Zamindari Abolition and restore the same to their original position. Let a

copy of this order be given to Shri S.P.Mishra, learned standing counsel

for communication to authorities concerned.”

In Iqbal Ahmad and others Vs. Deputy Director of Consolidation,

Deoria and others.

10

, this Court has held as under:-

“14. In these circumstances, the direction of the Apex Court in Hinch Lal

Tiwari v. Kamla Devi (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 under section 132 of the

U.P.Z.A. And L.R. Act be complied forthwith and land covered by water

be restored and maintained in the interest of the public in order to

maintain ecological balance and protecting environment. For this

purpose special measures needs to be taken??? the grass route level so

that directions??? the Apex Court be complied with Accordingly, State

Government is directed 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., Ist July, 1952 by

constituting a Special Investigation Team consisting of revenue

authorities and other concerned officials and Environmentalists and take

appropriate steps for compliance for the Apex Court's directions in

Hinchlal Tiwari v. Kamla Devi (supra). The State Government of Uttar

Pradesh is also directed to make compliance of this order within one year

from the date of service of this order to Standing Counsel/Chief Secretary

of Government of Uttar Pradesh to be circulated to all the District

Magistrates and Consolidation Authorities of the State of Uttar Pradesh.”

In Ram Naumee Vs. State of U.P. & Others

11

, this Court held thus:-

“18. It is apt to consider the judgment of the Apex Court in Jagpal Singh

v. State of Punjab, JT 2011 (1) SC 617: (2011) 11 SCC 396: AIR 2011 SC

1123. This was a case with respect of a Village Pond. In that

10

(2005) 98 RD 580

11

(2011) 5 All LJ 721

10

connection, the Apex Court has made certain observations which are

relevant for the present purposes. The Apex Court has deprecated the

action of the State Authorities either in allotting the public utility land in

favour of a person or in permitting an encroacher to occupy such public

utility land. It has relied upon its earlier decision M.I. Builders (P) Ltd. v.

Radhey Shyam Sahu, JT 1999 (5) SC 42; where the Supreme Court

ordered restoration of a park after demolition of a shopping complex

constructed at the cost of over Rs. 100 crores. It has been observed that

the principle laid down in the said decision of M.I. Builders (P) Ltd. v.

Radhey Shyam Sahu, JT 1999 (5) SC 42: will apply with even greater

force in cases of encroachment of village common land. In para 15 of the

report, the settlement of such Gaon Sabha land to private persons and

commercial enterprises on payment of some money has not been approved

and it has been provided that even if there is general order in favour of

such settlement, the same should be ignored.”

A Division Bench of this Court in Prem Singh Vs. The State of

U.P. and others

12

, taking note of the direction issued to the Principal

Secretary (Revenue), Government of Uttar Pradesh, has issued a fresh

direction to the State Government in the following terms:-

“4. In view of direction noticed in the aforesaid circular, we are of the

considered view that if complaints regarding unauthorized occupation

over the public ponds or other similar public lands are received by the

District Magistrate of a District, he should take all the required actions in

view of law already settled in the case of Jagpal Singh and others.

5. In case, the District Magistrate finds some good reasons to seek

guidance from the Members Committee indicated in Para-2 of the

aforesaid circular, then he may refer the matter and seek guidance in

appropriate cases.

6. So far as the present writ petition is concerned, we grant liberty to the

petitioner to approach respondents no. 2 and 3 again with a certified

copy of this order. The concerned respondents shall get appropriate

inquiry made and take required action to protect public ponds as per law

laid down by the Apex Court, expeditiously.

7. Let a copy of this order be furnished to the learned Standing Counsel

for the State for communication to the Principal Secretary, Revenue,

Government of Uttar Pradesh, who shall circulate a copy of this order to

all the Divisional Commissioners as well as the District Magistrates so

that number of such types of cases coming to this Court may be checked.

The petition is, accordingly, disposed of. ”

In Prem Singh (supra) case, the Division Bench has specifically

issued a direction to the Principal Secretary (Revenue), Government of

U.P., Lucknow to issue necessary circular to all the Commissioners and

District Magistrates in the State to ensure compliance of the directions

12

(2012) 11 ADJ 404 (DB)

11

issued by the Supreme Court in Hinch Lal Tiwari (supra) and Jagpal

Singh (supra).

Our experience shows that a large number of Public Interest

Litigation is filed in this Court raising grievance regarding the illegal

encroachments over the water bodies. In the instant case also, earlier,

the petitioner had approached this Court for a direction to the District

Magistrate. The number of Public Interest Litigations, themselves, go

to show that in spite of the judgement of the Supreme Court in Hinch

Lal Tiwari (supra), which was delivered way back in the year 2001, no

effective steps have been taken by the State and its functionaries to

restore the ponds in their earlier status and shape.

Supreme Court’s directions mentioned above have not received

their due attention by the State functionaries. The judgement of Hinch

Lal Tiwari (supra) was delivered more than 18 years back in Jagpal

Singh (supra). The Supreme Court has issued positive directions to all

Chief Secretaries for restoration of ponds. It is trite that law declared by

the Supreme Court is binding upon all the authorities under Article 141

of the Constitution.

We are constrained to observe that the decision of the Supreme

Court has not been implemented in the State. The casual approach

adopted by the State functionaries cannot be appreciated. It is very

disturbing state of affairs. The local authorities chose to by-pass not

only statutory provisions, but also the directions issued by the Supreme

Court and this Court.

Relevant, it would be to mention that rule of law is essence of a

democratic society. In this context, the observations of the Supreme

Court in the cases mentioned below are apposite.

In Karnataka Housing Board v. C. Muddaiah

13

, it has been held

thus:

13

(2007) 7 SCC 689

12

“32. We are of the considered opinion that once a direction is issued by a

competent court, it has to be obeyed and implemented without any reserva-

tion. If an order passed by a court of law is not complied with or is ignored,

there will be an end of the rule of law. If a party against whom such order

is made has grievance, the only remedy available to him is to challenge the

order by taking appropriate proceedings known to law. But it cannot be

made ineffective by not complying with the directions on a specious plea

that no such directions could have been issued by the court. In our judg-

ment, upholding of such argument would result in chaos and confusion and

would seriously affect and impair administration of justice. The argument

of the Board, therefore, has no force and must be rejected.”

In M.C. Mehta v. Union of India

14

, it has been held thus:

“If this Court finds that the authorities had not taken action required of

them by law and that their inaction is jeopardising the right to life of the

citizens of this country or any section thereof, it is the duty of this Court to

intervene. If it is found that the respondents are flouting the provisions of

law and the directions and orders issued by the lawful authorities, this

Court can certainly make appropriate directions to ensure compliance with

law and lawful directions made thereunder.”

In N. Kannadasan v. Ajoy Khose

15

, it has been held thus:

“46. In Supreme Court Advocates-on-Record Assn.

2

this Court laid down

the qualities of a Judge: (SCC pp. 601-02, para 273):

“273. … Under our constitutional scheme, the judiciary has been

assigned the onerous task of safeguarding the fundamental rights of

our citizens and of upholding the rule of law. Since the Courts are

entrusted the duty to uphold the Constitution and the laws, it very

often comes in conflict with the State when it tries to enforce its orders

by exacting obedience from recalcitrant or indifferent State agencies”

51. In our constitutional scheme, the judge-made law becomes a part of the

Constitution. It has been so held in M. Nagaraj v. Union of India in the

following terms: (SCC p. 238, para 9).

“9. … The Constitution, according to the respondents, is not merely

what it says. It is what the last interpretation of the relevant provision

of the Constitution given by the Supreme Court which prevails as a

law. The interpretation placed on the Constitution by the Court

becomes part of the Constitution and, therefore, it is open to

amendment under Article 368. An interpretation placed by the Court

on any provision of the Constitution gets inbuilt in the provisions

interpreted. Such articles are capable of amendment under Article

368.”

The Supreme Court in the long line of decisions has settled that a

person has fundamental right under Article 21 for a decent life and not

14

(2006) 3 SCC 399

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(2009) 3 SCC (Civ) 1

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an animal existence. The decent life has very wide connotation. It

includes pollution free environment, clean air and clean water. In this

regard it is apposite to mention the Article 48-A of the Constitution

which reads as under:

“48A. Protection and improvement of environment and safeguarding

of forests and wild life.— The State shall endeavour to protect and

improve the environment and to safeguard the forests and wild life of the

country.”

Article 51A of the Constitution deals with the legal duty of a

citizen.

In the light of the aforesaid two Articles the Supreme Court has

adopted the “Doctrine of the Public Trust”. The basic principle of the

“Doctrine of the Public Trust” is that the public has a right to expect

certain lands and natural areas to retain their natural characteristic is

finding its way into the law of the land. The doctrine of the public trust

has its origin from the ancient Roman Empire. It was founded on the

ideas that certain common properties such as rivers, seashore, forests

and the air were held by Government in trusteeship for the free and

unimpeded use of the general public. The recent attention paid to the

environment by the higher judiciary in the country bears a very close

conceptual relationship to this legal doctrine. The Roman Law provides

that the natural resources were either owned by no one (res nullious) or

by everyone in common (res communious). The said Roman law has

also been adopted by the English common law where the sovereign has

power to own the natural resources. But it does not has power to grant

these properties to private owners if the effect was to interfere with the

public interest.

The Supreme Court recently in the case of Lal Bahadur Vs. State

of U.P.

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has considered the violation of Master Plan on land reserved

for green belt was changed to residential use. The matter arose from

this State. The Court also considered other environmental issues and

Modern Public Trust Doctrine and has quoted with approval Joseph

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(2018) 15 SCC 407

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L.Sax, Professor of Law, University of Michigan-proponent of the

Modern Public Trust Doctrine-in an erudite article “Public Trust

Doctrine in Natural Resource Law: Effective Judicial Intervention”.

“22. In M.C. Mehta Vs. Kamal Nath, it was held that any disturbance to

the basic environment, air or water, and soil which are necessary for life,

would be hazardous to life within the meaning of Article 21 of the

Constitution. In such cases “polluter pays principle” can also be invoked

to restore the environment and to control it. It held: (SCC pp.219-20,

paras 8-10):

“8. Apart from the above statutes and the rules made thereunder,

Article 48-A of the Constitution provides that the State shall

endeavour to protect and improve the environment and to

safeguard the forests and wildlife of the country. One of the

fundamental duties of every citizen as set out in Article 51-A(g) is

to protect and improve the natural environment, including forests,

lakes, rivers and wildlife and to have compassion for living

creatures. These two articles have to be considered in the light of

Article 21 of the Constitution which provides that no person shall

be deprived of his life and liberty except in accordance with the

procedure established by law. Any disturbance of the basic

environment elements, namely air, water and soil, which are

necessary for “life”, would be hazardous to “life” within the

meaning of Article 21 of the Constitution.

9. In the matter of enforcement of rights under Article 21 of the

Constitution, this Court, besides enforcing the provisions of the

Acts referred to above, has also given effect to fundamental rights

under Articles 14 and 21 of the Constitution and has held that if

those rights are violated by disturbing the environment, it can

award damages not only for the restoration of the ecological

balance, but also for the victims who have suffered due to that

disturbance. In order to protect “life”, in order to protect

“environment” and in order to protect “air, water and soil” from

pollution, this Court through its various judgments has given

effect to the rights available, to the citizens and persons alike,

under Article 21 of the Constitution. The judgment for removal of

hazardous and obnoxious industries from the residential areas,

the directions for closure of certain hazardous industries, the

directions for closure of slaughterhouse and its relocation, the

various directions issued for the protection of the Ridge area in

Delhi, the directions for setting up effluent treatment plants to the

industries located in Delhi, the directions to tanneries etc., are all

judgments which seek to protect the environment.”

Coming to the case at hand, we find that no action had been taken

by the Authorities for the demolition of the illegal structure, which was

raised on the land of the pond. Only after filing of this Public Interest

Litigation, a demolition has been carried out on 26th August, 2019.

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This act only goes to show that the authority concerned has not paid

proper attention to the judgements of the Supreme Court, mentioned

above.

In view of the above discussion, we find that in the light of the

directions issued by the Supreme Court as well as the Division Bench

judgements of this Court, following directions are necessary to be

issued for the strict compliance of the law:-

(i)The Chief Secretary of the State of Uttar Pradesh shall

constitute a Committee in consultation with the Chairman,

Board of Revenue, which shall monitor the compliance of

the judgements of the Supreme Court and this Court. The

said Committee shall also invite Justice Ram Surat Ram

(Maurya) (Former Judge of this Court) as a special invitee

in its meeting. Justice Maurya shall be paid Rs. 10,000/-

(Rupees Ten Thousand) remuneration for attending each

such meeting in addition to his conveyance and other

charges;

(ii)the Collectors of each District of the State shall entrust the

the Additional District Magistrate (Finance & Revenue) to

make a list of ponds which are recorded in the revenue

records in the year 1951-52. He shall also prepare a list of

the ponds which are under the encroachment or in respect

of which the lease has been granted;

(iii)we charge the Additional District Magistrates (Finance &

Revenue) of each District of the State to comply these

directions;

(iv)the Collectors shall proceed to cancel the lease of the

ponds and restore the ponds in accordance with law and

directions issued by the Supreme Court. The Collectors

shall send a progress report in every six month to the

Committee constituted by the Chief Secretary;

(v)the Committee shall hold its meeting, at least, after every

three to four months and monitor the progress of

restoration of ponds in the State. In case any legal

impediment arises, the Collector shall apprise the

monitoring Committee, which shall issue appropriate

guidance to the Collector concerned in accordance with

law; and

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(vi)the other Committees, which were constituted earlier at

State level and District level, shall also send their report to

the Monitoring Committee.

We make it clear that any negligence in compliance of the orders

of the Supreme Court and this order shall be treated as a negligence of

duty and appropriate action shall be taken against the concerned

Officer(s) under the relevant Service Rules.

We are constrained to issue these directions having regard to the

fact that after lapse of 18 years, the State functionaries have not

complied with the directions of the Supreme Court as well as this Court.

Coming back to this case, we find that the demolition has been

made on 26th August, 2019, in which five rooms, one Office and one

wash-room is mentioned, but no further information has been furnished

to this Court whether the pond has been restored to its original shape

and present status of the matter.

The District Magistrate, Agra is directed to issue the necessary

directions for the restoration of the pond to its original shape and a

compliance report be filed to the Registrar General within three months.

The Registrar General shall place it on the record.

This Public Interest Litigation is disposed of in the above terms.

Order Date :- 16.9.2019

Amit Mishra