State Can't Treat Natural Water Bodies As Disposable State Property: Allahabad High Court
| Ownership by State doesn't confer unrestricted right to alienate a natural water body, Court said.
The Allahabad High Court has held that the State cannot exchange or divert an existing pond by offering another parcel of land in its place, and that construction of a Fire Station on pond land, along with its exchange under Section 161 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, is barred by the law laid down by the Supreme Court in Hinch Lal Tiwari v. Kamala...
The Allahabad High Court has held that the State cannot exchange or divert an existing pond by offering another parcel of land in its place, and that construction of a Fire Station on pond land, along with its exchange under Section 161 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, is barred by the law laid down by the Supreme Court in Hinch Lal Tiwari v. Kamala Devi.
Justice Prashant Kumar held,
“Ownership, even where vested in the State, cannot by itself confer an unrestricted right to destroy, alienate, divert or exchange a natural water body...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.”
A link road built in 1987-88 at Village Achhati, Tehsil Alapur in Ambedkar Nagar cut through land belonging to Manraj Kumari. By an order dated 22.03.1988 the Sub-Divisional Magistrate, Alapur proposed to acquire the portion taken by the road and to grant her alternative land in the abadi of Gaon Sabha Achhati; the exchange was resolved upon on 15.10.1988.
By a registered sale deed dated 14.05.1990 she sold the exchanged land, Gata No. 112 (minjumla) admeasuring 9 biswa, to the present respondents, who were recorded as bhumidhars with transferable rights and built a five-room house with a boundary wall on it. The Tehsildar later expunged their names, but that order was set aside. In 2007 the State began constructing a Fire Station on the plot, claiming it to be pond land.
The respondents sued for permanent injunction and ejectment. The Civil Judge (Senior Division), Ambedkar Nagar found them to be owners in possession and decreed the suit on 05.11.2015. The Additional District Judge dismissed the first appeal on 30.07.2018, holding that the Additional Commissioner, Faizabad Division's order restoring Samundra Devi's name had attained finality.
In second appeal under Section 100 CPC, admitted on nine substantial questions of law, the State argued that Gata No. 112 was recorded as pond land vesting in it and managed by the Gram Panchayat, that the entries in favour of the respondents were fraudulently obtained and cancelled after an inquiry, and that no bhumidhari rights could accrue in pond land, so that neither allotment nor exchange was permissible.
Pond land, it submitted, is public utility land that may be allotted for another public utility, relying on Section 77(2) of the Revenue Code and on Jagpal Singh v. State of Punjab. It also argued that the suit was barred by Section 331 of the Act, title to agricultural land lying before the revenue court.
The respondents replied that no substantial question of law arose for consideration in second appeal.
The Court held that the State's case rested on the untenable assumption that an existing pond is an ordinary parcel of land belonging to it. The character of the land as a pond was decisive, a natural water body and community resource with ecological and public utility dimensions, over which the State could claim no unfettered dominion merely because it stood recorded in its name.
“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.”
Noting the Public Trust Doctrine recognised in M.C. Mehta v. Kamal Nath, the Court said the State does not hold such resources as an unrestricted private proprietor. In Hinch Lal Tiwari, it noted, tanks and ponds had been treated as nature's bounty requiring protection, and the State could not take advantage of the very degradation of a water body it was bound to protect.
“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.”
Answering those questions against the State, the Court held that construction of a Fire Station on pond land and its exchange under Section 161 was barred by Hinch Lal Tiwari. It also held that the State could not evict the respondents by merely expunging their names from the revenue record.
It further held that they could not be deprived of both their original land and the land given in exchange; any cancellation of the allotment or dispossession had to follow the procedure established by law. The plea of estoppel failed for want of its essential ingredients, and following Mangoo Singh and Others v. Ram Autar the suit was held maintainable before the civil court.
Finding the second appeal to be without merit, the Court dismissed it.