Rajendra vs Additional Commissioner, Devi Patan Mandal, Gonda and Others

Devi Prasad Singh, J.—Controversy involved in the present writ petition relates to grant of lease of land earmarked in the revenue record as pond. During the course of hearing, it was brought to the notice of this Court that a large number of lakes and pond reserved and recorded in the revenue records for water harvesting since the country attained freedom have been converted to be used for agricultural, residential and commercial purposes. Hence question arisen for adjudication in the present writ petition is as to whether the land recorded in the revenue records or the area marked as pond, lake, or land for water harvesting can be converted for agricultural, residential, commercial or other use?

The brief facts of the case are as under:

The SubDivisional Magistrate, Gonda had granted to the opposite party No.4 the lease of the land in question which was recorded as pond by leas deed dated 25.1.1991. An application was moved by the petitioner on 7.12.2004 with the prayer that the lease granted to the opposite party No.4 should be cancelled as it was granted in derogation of statutory provisions contained in U.P. Zamindari and Land Reforms Act (In short, hereinafter referred to as ''Act''). A copy of the application dated 20.11.2004, submitted by the petitioner Rajendra along with one Ram Achal to the District Magistrate, Gonda has been filed as Annexure3 to the writ petition. The application was moved in pursuance of the power conferred by SubSection (4) of Section 198 of the Act.

A perusal of the application shows that the petitioner has raised grievance with the submission that the disputed plot No.570, situated in village Lonawa Dargah, Pergana and Tehsil Gonda is a pond reserved for utilization by public. In the revenue record also, the plot in question has been recorded as pond. According to the petitioner, since long, the pond in question has been used by the villagers for their domestic and irrigation purposes. It is also being used to provide drinking facility to the cattle of the village in question. It was categorically pleaded by the petitioner that the land in question is not an agricultural land and in collusion with the revenue authorities, the lease was granted to the opposite party No.4 Shri Abdul Hadi. It is also stated that the private respondent has got patta of other land also. The petitioner has taken plea that the grant of patta to the respondent No.4 should be cancelled keeping in view the law settled by the Apex Court in a case reported in (2001) 6 SCC 496, Hinch Lal Tiwari v. Kamala Devi and Others.

The petitioner had filed a supplementary affidavit dated 29.7.2006 and brought on record extract of CH Form No.45 prepared during consolidation proceedings in the year 1970. CH Form 45 shows that the land in question, i.e. Gata No.570 placed under category 6(1) is not agricultural land submerged with water (pond). The copy of the lease deed dated 11.2.1991, filed by the respondent Abdul Hadi along with the counter affidavit as Annexure1 also shows that entry of pond of Gata No.692 was cancelled and lease was granted to the respondent under Clause (2) with nontransferable right. Thus, it is the admitted fact on record that the land in question even during consolidation operation was recorded as pond reserved for water harvesting.

The application moved by the petitioner for cancellation of lease was rejected by the Additional SubDivisional Officer by impugned order dated 7.3.2005 on the ground that the application moved after more than thirteen years was barred by delay and latches. It is further held by the SubDivisional Officer that the petitioner has not challenged the allotment of land to other persons by the order dated 25.1.1991. According to the SubDivisional Officer, it was allotted to five persons. A revision preferred by the petitioner was rejected by the Additional Commissioner, Judicial, Devi Patan Mandal, Gonda by the impugned order dated 27.4.2006 (Annexure1), reiterating the finding recorded by the Additional SubDivisional Officer. It is held by the Addl. Commissioner that the lease was granted on 25.1.1991 and since the petitioner moved an application on 7.12.2004, it is barred by delay and latches. Feeling aggrieved of the impugned orders passed by the opposite parties 1 and 2, the petitioner has approached this Court under Article 226 of the Constitution of India.

After hearing learned counsel for the parties, for the sake of abandoned (sicabundant) caution, this Court by an order dated 1.8.2006, directed the District Magistrate, Gonda to appoint the Addl. District Magistrate to visit village Lonawa Dargah, pergana and tehsil Gonda to verify whether the land in question is a pond and submit a report. The District Magistrate was also directed to submit a report with random survey of all the tehsils of District Gonda to verify as to whether at large scale pond or area earmarked for water harvesting has been converted for agricultural and other purposes. After spot inspection, the Additional District Magistrate Shri Jayendra Kumar Dixit had submitted a report with the finding that the lease has been given of the land in question, i.e. Gata No.570 in favour of Abdul Hadi and at the spot, 0.247 hectare is pond and 0.12 hectare is road as well as trench where one Ram Achhaiber son of Jagannath had unauthorisedly occupied 0.032 hectare of land utilized for agricultural purposes. Some constructions have been made by the private respondent on all sides of the pond in question. No other person has encroached the pond.

On the basis of the random survey of almost all the tehsils of district Gonda through their SubDivisional Magistrates, the District Magistrate, Gonda, vide letter dated 10.8.2006, has informed that a large number of ponds have been converted for other use and are in unauthorized occupation of private persons. Some of the ponds have been given on lease to various villagers converting their use.

During the course of argument, it was brought to the notice of the Court that throughout the State of U.P., substantial portions of pond and lakes have been converted for residential and commercial use not only by the private persons but also by the governmental authorities in violation of the statutory provisions as well as constitutional mandate. It was also brought to the notice of this Court that on account of conversion of ponds, lakes and land entered in relevant records for water harvesting into residential, commercial or agricultural use, the underground water level is going down every year in the State which may create acute problem with wather scarcity to the society in future.

Since the material brought on record during the course of argument was of public importance, hence in spite of the fact that the controversy before the Court was of private nature relating to only one plot claimed to be pond, the State was directed to submit a report relating to the status of the ponds, lakes and other land recorded for water harvesting in the year 1950 and the current year of 2006 in urban area.

JURISDICTION OF THE BENCH

A question was cropped up during the course of hearing as to whether public interest can be looked into in the present writ petition where the controversy is of private nature. In a case reported in 2003(7) SCC 546, Guruvayoor Devaswom Managing Committee and another v. C.K. Rajan and Others, their Lordships of Apex Court held that even in the private litigation, the Court has got power to appoint Commission and secure public interest after holding necessary enquiries. It is not necessary that only in a case filed by a person under the garb of public interest litigation, this Court may exercise extraordinary jurisdiction to secure the public interest. Relevant portion from the judgment of Guruvayoor Devaswom Managing Committee (supra) is reproduced as under:

�50. The principles evolved by this Court in this behalf may be suitably summarized as under:

(i) The Court in exercise of powers under Article 32 and Article 226 of the Constitution of India can entertain a petition filed by any interested person in the welfare of the people who is in a disadvantaged position and, thus, not in a position to knock the doors of the Court.

The Court is constitutionally bound to protect the fundamental rights of such disadvantaged people is as to direct the State to fulfill its constitutional promises. (See S.P. Gupta v. Union of India, People''s Union for Democratic Rights v. Union of India, Gandhua Mukti Morcha v. Union of India and Janata Dal v. H.S. Chowdhary)

(ii) Issues of public importance, enforcement of fundamental rights of a large number of the public vis�vis the constitutional duties and functions of the State, if raised, the Court treats a letter or a telegram as a public interest litigation upon relaxing procedural laws as also the law relating to pleadings. (See Charles Sobraj v. Supdt., Central Jail and Hussainara Khatoon (1) v. Home Secretary, State of Bihar)

(iii) Whenever injustice is meted out to a large number of people, the Court will not hesitate in stepping in. Articles 14 and 21 of the Constitution of India as well as the international conventions on Human Rights provide for reasonable and fair trial�����.

(iv) The common rule of locus standi is relaxed so as to enable the Court to look into the grievances complained on behalf of the poor, the depraved (sic), the illiterate and the disabled who cannot vindicate the legal wrong or legal injury caused to them for any violation of any constitutional or legal right. [See Fertilizer Corpn., Kamgar Union (Regd.) v. Union of India, S.P. Gupta, People''s Union for Democratic Right, D.C.Wadhwa (Dr.) v. State of Bihar and BALCO employees'' Union (Regd.) v. Union of India.]

(v)�������..

(vi)�������.

(vii) The dispute between two warring groups purely in the realm of private law would not be allowed to be agitated as a public interest litigation. (see Ramsharan Autyanuprasi v. Union of India)

(viii) However, in an appropriate case, although the petitioner might have moved a Court in his private interest and for Redressal of personal grievances, the Court in furtherance of the public interest may treat it necessary to enquire into the state of affairs of the subject of litigation in the interest of justice. (See Shivajirao Nilangekar Patil v. Dr. Mahest Madhav Gosavi)

(xi) The Court in special situations may appoint a commission, or other bodies for the purpose of investigating into the allegations and finding out facts. It may also direct management of a public institution taken over by such committee. (see Bandhua Mukti Morcha, Rakesh Chandra Narayan v. State of Bihar and A.P. Pollution Control Board v. Prof. M.V. Nayudu)�..

Para 90 The curtain of this litigation must be drawn here and now. The State, admittedly, implemented many of the suggestions of the High Court. They would not be reopened. Some suggestions of the High Court are pending consideration at the hands of the State. They may be considered. The State shall, however, as regards the directions of the High Court which according to it can not be complied with, pass appropriate orders recording sufficient and cogent reasons therefore as expeditiously as possible and not beyond a period of three months from the date of communication of this order. The High Court, if any proceeding is initiated in relation thereto, may deal therewith in accordance with law.�

The principle of law relating to adjudicate public interest matter while dealing with a petition relating to private interest has bene affirmed by the Supreme Court in another case, reported in (2005) 5 SCC 598, Ashok Lanka and another v. Rishi Dixit and Others. For convenience, relevant portion of the judgment in Ashok Lanka''s case (supra) is reproduced as under:

�42. It may not be necessary for us to consider as to whether the public interest litigation should have been entertained by the High Court or not. The High Court did entertain the public interest litigation without any objection and ultimately allowed the same. Furthermore it is well settled that even in a case where a petitioner might have moved the Court in his private interest and for redressal of personal grievances, the Court in furtherance of the public interest may treat it necessary to enquire into the state of affairs of the subject of litigation in the interest of justice (See Guruyayoor Devaswom Managing Committee v. C.K. Rajan, SCC para 50 and Prahlad Singh v. Col. Sukhdev Singh, (1987) 1 SCC 727).�

A Full Bench of this Court also in a case reported in 2006 Vol. 4 ADJ 106, Suo Moto Action v. I.C.I.C.I. and Others, has also followed the principle laid down by the Apex Court in the case of Guruyayoor Devaswom Managing Committee (supra).

Right to consider public interest in a writ petition filed purely with regard to private dispute has been reaffirmed by the Apex Court, relying upon the case of Guruyayoor Devaswom Managing Committee (supra) in a case reported in AIR 2003 SC 4531, General Manager, Kisan Sahkari Chini Mills Limited, Sultanpur, U.P. v. Shatrughna Nishad (para 28).

Public Interest Litigation ordinarily means a litigation arisen and cropped up in this Court at initial stage on account of suo moto action taken by the Hon''ble Judges or in pursuance to a petition filed by a private litigant or the Court''s take suo moto action on the basis of the letter received by Hon''ble Chief Justice or Hon''ble Judge of this Court. In such circumstances, naturally under the rules of the Court, such controversy should be adjudicated by a Bench seized with public interest litigation being nominated by Hon''ble Chief Justice. Public interest and public interest litigations are different things, Public interest can be looked into by a Bench of this Court while deciding even a private dispute as settled by the Apex Court in a pending matter. Whenever, a petition is filed or suo moto action taken by the Hon''ble Judges of this Court relating to public interest and a writ petition is registered either on the order of the Hon''ble Chief Justice or on the order of Hon''ble Judge of this Court to deal with the public interest matter, then such cases shall fall within the category of ''Public Interest Litigation'' and should be adjudicated by a Bench which has been allocated by the Hon''ble Chief Justice to deal with the public interest litigation.

The word �litigation� has got prime importance to interpret the word, �Public Interest Litigation�. In every litigation, there should be litigious right comprised of litigators. In Black''s law Dictionary, the words, ''litigation'', ''litigator'' and ''litigious right'' have been defined as under:

�litigation: The process of carrying on a lawsuit.

Litigator: A party to a lawsuit; a litigant, a trial lawyer, a lawyer who prepares cases for trial, as by conducting discovery and pretrial motions, trying cases, and handling appeals.

Litigious right: A right that cannot be exercised without first being determined in a law suit. If the right is sold, it must be in litigation at the time of sale to be considered a litigious right.�

In The Law Lexicon Dictionary by P. Ramanatha Aiyer, the words, ''litigate'' and ''litigare'' have been defined as under:

�Litigate: To dispute or contend in form of law; to carry on a suit.

Litigare: To litigate; to carry on a suit, either as plaintiff or defendant; to claim or dispute by action; to test or try the validity of a claim by action.�

In view of the aforementioned definition, whenever a bench of this Court in a pending matter, in public interest proceeded to decide a collateral controversy relating to public rights and interst, then such action is permissible under law keeping in view the Apex Court''s judgments referred to hereinabove. Needless to say while deciding a public interest matter, the Court may issue general direction ordinarily in public interest without indulging into disputed question of fact or disputed question of title.

Needless to say that the Judges of this Court exercise jurisdiction under the Rules of the Court and allocation of work by Hon''ble Chief Justice. While deciding a controversy, every Hon''ble Judge of this Court has to discharge jurisdiction in the area which has been allocated by the Hon''ble Chief Justice vide State of Rajasthan v. Prakash Chand and Others, (1998) 1 SCC 1, Prof. Y.C. Simhadri, Vice Chancellor, B.H.U. and Others v. Deen Bandhu Pathak, Student, 2001 (4) AWC 2688, Chandra Bhushan Tewari v. State of U.P. and Others, 2001 (1) AWC 383 and several other cases. Accordingly, the test which should be applied while deciding the jurisdiction of the Court is as to whether the Bench was allocated work for the jurisdiction in question. As observed hereinabove, the present writ petition was filed before this Bench with the grievance that a land recorded as pond in the revenue record was allotted for housing and other purposes on lease. Later on, it was submitted and an affidavit was also filed relating to encroachment of ponds and lakes at other places. It was argued that for extraneous reasons and consideration, the ponds and lakes in the State of U.P. have been encroached upon causing acute water shortage and downfall of water level. Information summoned by this Court from the Secretary, Board of Revenue has proved beyond doubt that the ponds and lakes in the State of U.P. have been converted for other use including construction of house on one or the other ground.

Since the controversy arisen during the course of hearing corelated with the same dispute and question of law called for adjudication was almost the same, hence, this Bench had exercised power in public interest keeping in view the Apex Court''s judgment of Guruvayoor Devaswom Managing Committee (supra) and Ashok Lanka (supra). Accordingly, the objection raised by Sri Krishna Chandra relating to exercise of jurisdiction does not seem to be sustainable.

It is settled proposition of law that in case a letter is received relating to pulbic grievance by an Hon''ble Judge, relating to which, no controversy is pending on judicial side or a petition is filed in public interest, that should be adjudicated by the bench seized with the cases earmarked as Public Interest Litigation. The anonymous letter received by a Bench relating to controversy pending before it may be adjudicated by the same Bench on judicial side. There are catena of judgments when not only the Apex Court but this Court also exercised jurisdiction in public interest relating to corelated or collateral matter while deciding a case pending before it even if the controversy pending before the Corut is in the nature of private dispute.

Moreover, so far as the TikaitRaiTalab is concerned, the S.D.M. was only directed to hold enquiry and submit a report. No order was passed against a private occupier. The S.D.M. owes statutory duty under the U.P.Z.A.& L.R. Act to dispossess the unauthorized occupants in accordance with law indicated in the present judgment. Even if this Court would not have issued any direction, it was the duty of the SubDivisional Magistrate to remove unauthorized occupation of land. Sufficient safeguard has been provided in the Act and relevant statute for compliance of natural justice.

In view of the law settled by the Apex Court, referred to hereinabove, while dealing the present controversy, this Court has got jurisdiction to consider the encroachment made or construction done over the lands which are recorded as ponds and lakes in the revenue record. Needless to say, it is the statutory duty of the State to preserve and protect not only the Gram Sabha land but also the ponds, lakes and the land earmarked for water reservoir whether existing in rural area or urban area.

In a writ petition No.38910 of 2003 Iqbal Ahmad and Others v. Deputy Director of Consolidation, Deoria and Others, this Court at Allahabad had already issued appropriate direction to the State authorities to remove the encroachment or construction done on the ponds or lakes situated in rural area. However, nothing has been done to preserve and protect the ponds and lakes situated in the urban area including tehsils. Hence, the Secretary, Board of Revenue was directed to submit a status report of ponds, lakes and land earmarked for water harvesting, in the revenue records. According to the status report, submitted by the Secretary, Board of Revenue, there is sharp decline in the total area of ponds and lakes in the State of U.P. causing decrease of underground water land.

WATER HARVESTING IN ANCIENT AND MEDIEVAL INDIA

Keeping aside the infrastructure developed in ancient India of Ramayan or Mahabharat era, in case we enter into the historical evidence, we will find substantial evidence which indicates that the rulers and inhabitants of this great country were conscious to establish water bodies to provide drinking and irrigation facilities to the citizens. The excavation done in Mohenjo Daro and Harappa, Lothal and several other places termed as �Indus Civilisation� shows the construction of large number of wells, tanks and water reservoirs in the form of ponds and lakes in this country. The excavation done from time to time shows that during the Indus Civiliation (about 3000 BC), rulers and citizens of that time were conscious to reserve water for routine use. In a book, �Indus Civilisation� by Irfan Habib, the description relating to such facilities is reproduced as under:

�The Indus Civilization is the first culture known where access to underground water was secured by wells. One need not doubt that ''cutcha'' wells were dug in the villages; and at Allahdino (near Karachi) a stonemasonry well, built on higher ground, is supposed to have been so placed in order to help irrigate lowerlying fields. But there is no proof that the pulley was in use; and without pulleyandrope the oxen could not have been used to lift water for field irrigation. On rivers, lakes and bunded reservoirs. The leverlift based on stone counterweights (''shaduf'', ''dhenkli'') could have been in use, since the device is possibly represented on a seal from Mohenjo Daro. A canal built by Indus people has been traced near Shortunghai, drawing water from Kokcha river; there is, therefore, some likelihood that similar canals were excavated in the Indus basin.�

The excavation at Lothal in Gujrat also shows construction of bit lake for water harvesting. The same author (supra) has noticed in his book as under:

�This needs to be borne in mind when one considers the remarkable tank, 212215 metres long and 3537 metres broad, with sides built of fired brick. There is some evidence that it received sea water; but if it was a ''dockyard'', as the excavator S.R. Rao suggested, then it could have received only very small boats, since the inlet into it had little depth. The alternative suggestion that it was an irrigation tank also has problems with it, especially since such a masonry structure was hardly necessary for providing water for field irrigation.�

Learned author again noticed that strict disciplines were maintained by rulers in the city of Mohenjo Daro that no encroachment or construction is made on roadside. Things were maintained in the original form without encroachment by citizens. Few lines from the same book (supra) are reproduced as under:

�While a main street in the acropolis was 6 metres wide, the ''First Street'' in the Lower Town had a width of more than 10 metres: it would have allowed two bullockcarts to pass each other with much space to spare. Throughout the larger part of the life of Mohenjo Daro as a city, no encroachments or construction on these roads was allowed.�

Chandragupta began his reign in 321 BC. He was followed by Bindusar in 297 BC and coronation of emperor Ashoka took place in 265 B.C. Kautilya, popularly known as Chanakya was the chief architect of Chandragupta. The historians say that kautilya became the Chief Minister of Chandragupta and was the motivating power behind Chandragupta''s early attempts at the throne of Magadha.

It was the contribution of Kautilya who has given a long way of good administration in Indian History. Most celebrated book of Kautilya is his ''Arthashastra'' whose secular credentials have been widely acclaimed worldwide. Arthashastra written by Kautilya was the guiding spirit for the rulers of Maurya Dinesty to provide a good administration. Much emphasis was given by Kautilya for the maintenance of natural resources including construction of water reservoirs. It was the duty of not only the king but of the citizens also to do joint effort for construction of water reservoirs not only for supply of water to the peoples for the purpose of irrigation and drinking but also to maintain the depth of underground water level. The noble thought spread by Kautilya through his Arthashastra and other manuscripts has always impressed the intellectuals and thinkers all over the world. The importance of maintenance of water bodies and other natural resources reflects from the following passages being reproduced from Kautilya''s Arthashastra:

�Not only shall the King keep in good repair productive forests, elephant forests, reservoirs and mines created in the past, but also set up new mines, factories, forests [for timber and other forest produce], elephant forests and cattle herds and [shall promote trade and commerce by seeting up] market towns, ports and trade routes, both by land and by water.�

�He shall build storage reservoirs, [filling them] either from natural springs or with water brought from elsewhere; or, he may provide help to those who build reservoirs by giving them land, building roads and channels or giving grants of timber and implements. Similar help shall be given to those who build shrines and sanctuaries.�

�If anyone refuses to participate in a cooperative effort [of all the people in a settlement] to build a reservoir, his labourers and bullocks shall [be made to] do [his share of] the work. He shall pay his share of the cost but shall not receive any share of the benefits.�

Ref.: The Arthashastra by Kautilya edited by L.N. Rangaranjan, page 181.

From the aforementioned passage, reproduced from the Kautilya Arthashastra as well as extracts from Indus Civilisation, it reveals that the rulers and peoples of this country were very well conscious not only to maintain natural resources but also create artificial water reservoirs. The Vaidic scriptures, shloks (stanza) and other ancient textures manuscript reveal that since ages in this country, rulers and peoples were conscious for the maintenance of natural resources and water reservoirs, that is why in one or the other form, natural reservoirs were worshipped with gratitude.

In the Medieval India also, the rulers from time to time were conscious for rain water harvesting and to create water bodies to meet out requirement of people. In Udaipur around the year 1559, Maharaj Udai Singh had ensured that the city did not go without water by constructing artificial lakes. The lakes of Udaipur which were falling within the hands of land maphia created almost 450 years back is in the process of maintenance by due interference of public spirited citizens. Several artificial lakes were constructed to ensure water supply like at Udaipur, Chota Madar, Bada Madar, Kumahariya Ka Talab (1668), Rangsagar (1668), Swaroopsagar (1844), Fatehsagar (1678, renovated in 1880), Govardhan Vilas and Udaisagar.

In Hyderabad, within a radius of 35 kilometres, there are about 532 tanks and kuntas (percolation tanks). The Zutub Shahis (15641724 AD) and Asafzahi rulers (19241948 AD) had built many small and big lakes in and around the city to store water for their various activities. Rulers of Oudh had also constructed �bawori� walls and ponds for water reservoir.

It is not for this Court to give this description of ponds and lakes, constructions created by various rulers in Ancient or Medieval India but it is true from above description that in past, the rulers of this country were conscious for creation, establishment and maintenance of water reservoir to meet out the requirement. Because of the steps taken by our forefathers, there has never been scarcity of water in most parts of the country and country had enjoyed the fruit with sumptuous use of water for all practical purposes with due maintenance of underground water level.

Reason for destruction of water bodies:

The modus operendi of destructing the lakes and pond is simple and systematic. Peoples or municipalities or local bodies use to start dumping garbage into such area. Domestic and industrial effluents are also let into the water bodies. The grass, wheats and water hyacinth are never removed. Thus, the lakes, ponds and other water reservoirs gradually die and slums colonies and other developed bridges spring up near or over it. The nexus between the political persons, government agencies, land grabbers and criminals and other powerful persons with adequate machine and man power result into unauthorized encroachment and rooting out of such ponds and lakes in due course. Some times, the land recorded as pond or lakes are taken over by statutory bodies and allotted for building houses and commercial complex under the garb of planning and development.

Because of delayed action by the employees of Revenue Department, some time negligently, sometime deliberately, the ponds and lakes and water bodies are occupied by unauthorized persons or encroachers. Sometimes these areas are declared as useless land and acquired by statutory bodies for construction of houses or development of colonies.

Because of rise in population, substantial number of ponds of the villages have fallen into urban area. Because of sealing and dumping of garbage, sometime deliberately and sometimes unintentionally, the nature of land is being changed and used for housing and other purposes. Sometimes, they are allotted for agricultural and housing purposes by agreement through lease by the revenue authorities forgetting that it is the duty of the Gram Sabha to maintain, develop and restore the ponds and lakes falling within their peripheries as discussed hereinafter.

Water crisis in the world and water harvesting

Developed countries of the world are facing acute water crises because of their narrow thoughts and careless attitudes towards environmental protection while proceeding with sustainable development of the countries. In Germany, every year 50% rain water harvesting system are installed. The Germany Government had regulated the ground water use and charging for it by legislating and enforcing stringent law to meet out its requirement of water supply. Between 1985 and 1992, the price for water in Germany increased 2.5 times faster than the general cost of living. According to a report, the average price for one cubic metre water in West Germany in 1995 was three deutsche marks (DM) or US $ 1.27. Since 1995 cost has been increased to many fold. Germany has legislated water budget law in 1986. The law are recognized ''water as an element of the naturebalance which has to be managed in a way that any avoidable disturbance will have to cease, and, ''everybody has the duty to use water sparingly out of consideration for the water balance''.

Tokyo has been inflicted with water shortages and floods alternatively almost every year. The Tokyo government has taken steps for rain water harvesting to use two billion cubic metres rain every year. Almost 20% of the facilities in Kokugikan including the air conditioning system, toilets, use rain water collected from roof top. In Tokyo also, more than 500 buildings have been introduced rain water utilization system. In Tokyo International Rainwater Utilisation Conference was held in August, 1994 in Sumida City where 26 countries including France, Germany, United States had participated to develop water harvesting system.

In Singapore, water harvesting has been done from roof top as well as in industrial''s lots. Catchment areas in airports are much larger than roof areas and have been involved in harnessing of both surface runoff and roof water.

In our country, the acute water scarcity facing by citizens of Chennai has been sorted out by developing and maintaining the water reservoirs situate outside the city.

In the State of U.P., no effective steps have been taken by the Government to preserve and protect the water bodies. The figure given in the preceding para at the face of record shows that majority of the water bodies situate in urban area has been reduced to garbage centre or their substantial portion has been converted for other use like residential and agricultural purposes. Needless to say mere issuance of government order shall not be suffice to preserve, protect or restore the water bodies in the State of U.P. Only after the judgment rendered by this Court at Allahabad in writ petition No.38910 of 2003 which has been monitored by the Hon''ble Single Judge of this Court, some steps have been taken to restore the ponds in the rural areas. Various seminars, functions and government orders and relevant provisions contained in the Acts and statutes have been confined only in the books, though the underground water in the State of U.P. is going down every year as is apparent from the extract of the advertisement published by Housing Board in newspaper Jansatta dated 15.8.2006. For convenience, the said portion is reproduced as under:

Constitutional Mandate:

Under Part IV ''Directive Principles of State Policy'', the Constitution of India contains certain mandates which are the constitutional mandate to proceed with the welfare activities for the State Certain provisions may be discussed as under:

Article 38 casts a duty on the State to secure the social order for the promotion of welfare of people. Social order means a society which enjoys justice, social, economic and political. It shall be the duty of the State to eliminate inequality in status, facilities and opportunities. Water around which life survives should be preserved for use of common good. For dignified life, it is necessary that the citizens may enjoy unpolluted and hygienic water with fresh air. For ecological balance, it is necessary that water bodies may be created, maintained and regulated in such a manner so that underground water level does not recede beyond the reach of common people.

Under Art. 39(b), ownership and control of material resources of the community should be distributed to subserve the common good. Art.48A of the Constitution cast a duty on the State to protect the environment and safeguard forest and wild life. Water harvesting is part and partial of environment protection. For convenience, Articles 38, 39(b) and 48A of the Constitution are reproduced as under:

�38: State to secure a social order for the promotion of welfare of the people (1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.

(2) The State shall, in particular, strive to minimize the inequalities in income, and endeavor to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.�

�39(b): That the ownership and control of the material resources of the community are so distributed as best to subserve the common good:

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.�

Art.51A(g) of the Constitution of India further provides that it shall be the fundamental duties of the citizens to protect and improve the natural environment including forests, lakes and rivers. For convenience, Art.51A(g) is reproduced as under:

�(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living oreatures.�

It has been held by the Apex Court vide AIR 1976 SC 1455, Mumbai Kamgar Sabha v. Abdulbhai and some other cases that though the provisions contained in Fundamental Duties under Art. 51A of the Constitution of India cannot be enforced by a writ but they can be taken into consideration for interpreting the statutes.

In view of the above, keeping in view the statutory provisions, referred to hereinafter, as well as various constitutional provisions including Art. 51A(g), it shall be the duty of the State and its local bodies to protect and improve the water bodies for the sake of better life of coming generation.

Statutory provisions:

Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act No.1 of 1951) was published in the official gazette on 26.1.1951. Clause (c) of Subsection (1) of Section 2 provides that the State Government by a gazette notification may modify the application of Act in certain situations. Under Subsection (2) of Section 2 of the Act, whenever a declaration is made under Clause (c), the State Government may in public interest supersede such declaration, such area has not been utilized in execution of a housing scheme till date of notification. For convenience, relevant portion from Section 2 including Clause (c) of Subsection (1), its proviso, Subsection (2) and Subsection (3) is reproduced as under:

�2. Modification of the Act in its application to certain areas (1) The State Government may by notification in the Gazette apply the whole or any provision of this Act to any of the following areas or estates subject to such exceptions or modifications, not affecting the substance, as the circumstances of the case may require

(c) areas held and occupied for a public purpose or work of public utility and declared as such by the State Government or acquired under the Land Acquisition Act, 1894 (1 of 1894), the United provinces Land Acquisition (Rehabilitation of Refugees) Act, 1948 (U.P. Act XXVI of 1948), the United Provinces Acquisition of Property (Food Relief) (Temporary Powers) Act, 1948 (U.P. Act XXXIX of 1948) or any other enactment other than this Act, relating to acquisition of land for a public purpose.

Provided that, when this Act or its provisions are so extended to such areas or estates, with or without exceptions or modifications, so much of any Act or Regulation in force therein as is inconsistent with this Act or the provisions so extended or with any modifications made therein, shall be deemed to have been repealed:

Provided further that a notification under this subsection in respect of any estate or part thereof owned by the Central Government shall not issue except in consultation with such Govt.

(2) Where the declaration made by the State Government under Clause (c) of subsection (1) is in respect of any area held on the seventh day of July, 1949, for the purposes of a housing scheme by a cooperative society registered under the U.P. Cooperative Societies Act, 1965 or a society registered under the Societies Registration Act, 1860 or a limited liability company under the Companies Act, 1956, the State Government may by notification, in public interest, rescined or supersede the declaration in respect of such area as has not actually been utilized in execution of a housing scheme till the date of the notification whether on account of any default on the part of such society or company or for any other reason whatsoever.

Explanation An rea shall, for purposes of this subsection, be deemed to have not been actually utilized, in execution of a housing scheme if on the date of the notification under the subsection

(a) in the case of a building site, constructions have not been made at least up to the stage of completion of foundation; and

(b) in any other case, the land is not covered by any road or park.

(3) The area of land in respect of which a notification under subsection (2) is issued may be utilized by the State Government for purposes of housing and urban development in such manner as may be prescribed.

Under Section 4 of Act, after date of vesting all estates in the State of U.P. Shall vest in the State and it shall be lawful for the State to issue from time to time notification under subSection (1). Under Section 6, after issuance of notification under Section 4, all rights title and interest brought by intermediaries relating to tanks, water tanker etc. shall vest in the State. For convenience, Section 4, Section 6(a),and (B) and reproduced as under :

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 situated 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 subsection (1) in respect only of such area or areas as may be specified and all the provisions of subsection (1) shall be applicable to and in the case of every such notification.

Consequences of the vesting of an estate in the State When the notification under Section 4 has been published in the Gazette, then, notwithstanding anything contained in any contract or document or in any other law for the time being in force and save as otherwise provided in this Act, the consequences as hereinafter set forth shall, from the beginning of the date of vesting, ensure in the area to which the notification relates, namely:

(a) all rights, title and interest of all the intermediaries

(i) in every estate in such area including land (cultivable or barren), groveland, forests whether within or outside village boundaries, trees (other than trees in village abadi, holding or grove), fisheries tanks, waterchannels, ferries, pathways, abadi sites, hats, bazaars and melas [other than hats, bazaars and melas held upon land to which clauses (a) to (c) of subsection (1) of Section 18 apply], and

(ii) in all subsoil in such estates including rights, if any, in mines and minerals, whether being worked or not.

Shall cease and be vested in the State of U.P. Free from all encumbrances:

(b) all grants and confirmations of title of or to land in any estate so acquired, or of or to any right or privilege in respect of such land or its land revenue shall, whether liable to resumption or not determine.

Section 24 of the Act further provides that all contracts of agreement which may defeat the provisions of the Act shall be void. Section 25 provides that after publication of the notification under Section 4, it shall be lawful for the Collector or any person appointed by him to take charge of any estate or part of any estate of all the interests vested in the State Government. Section 25 further empowers the Collector or his nominee to enter into all land, buildings or properties which is vested in the State Government in pursuance of the notification under Section 4 of the Act. Section 26 empowers the State Government to fram rules for the purposes of carrying into effect the provisions of this Chapter. For convenience, Section 24, 25 and 26 of the Act are reproduced as under:

�24. Contract of agreement to defeat provisions of this Act to be void Any contract or agreement made between an intermediary and any person on or after the first day of July, 1948, which has the effect, directly or indirectly.

(a) of relieving, whether in whole or part, a bhumidhar or sirdar from the liability for the land revenue, to be paid by him for any land comprised in his holding, or

(b) of entitling an intermediary or receive, on account of rehabilitation grant an amount higher than what he would, but for the contract or agreement, be entitled to under this Act shall be and is hereby declared null and void.

Collector to take over estates Upon the publication of the notification under Section 4, it shall be lawful for the Collector or any officer appointed by him in this behalf

(a) to take charge of any estate or part of an estate and of all interests vested in the State under the provisions of this Chapter, and to take or cause to be taken such steps and use cause to be used such force as may, in the opinion of the Collector or the officer so appointed, be necessary for this purpose;

(b) to enter upon any land, building or other place forming part of any estate acquired under the provisions of this Chapter and make a survey or take measurement thereof or do any other act which he considers necessary for carrying out the purposes of this Act.

(c) to require any person to produce to such authority as may be specified any books, accounts or other documents relating to any estate or part thereof and to furnish to such authority such other information as may be specified or demanded, and

(d) if the books, accounts and other documents are not produced as required, to enter upon any land, building or other place and seize and take possession of such books, accounts and other documents.

Power to make rules (1) The State Government may make rules for the purpose of carrying into effect the provisions of this Chapter.

(2) Without prejudice to the generality of the foregoing power, such rules may provide for

(a) the proceedings prior to the vesting of estates under Section 4;

(b) the disposal of suits and proceedings stayed under this Chapter;

(c) the method of calculating rents, cesses, local rates and sayar mentioned in clause (c) of Section 6;

(d) the matters, relating to the taking over of estates under Section 25; and

(e) the matters which are to be and may be prescribed.

Under Section 117 of the Act, all land referred in notification issued under Section 4 including tanks, ponds, private ferries, water channels, pathways shall vest in Gaon Sabha subject to rights of local bodies accorded by the Government in pursuance to declaration made through a notification, issued under the Act. For convenience, Section 117 of the Act in its totality is reproduced as under:

�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 orders 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) forest;

(iii) trees, other than trees in a holding or on the boundary of a holding or in grove or a abadi;

(iv) fisheries;

(v) hats, bazaars and melas except hats, bazaars and melas held on lands to which the provisions of Clauses (a) to (c) of subsection (1) of Section 18 apply or on sites and areas referred to 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 the Gaon Sabhas or any other local authority established for the whole or part of the village in which the said things are situate, or party in one such local authority (including a Gaon Sabha) 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, [by general or special order to be published in the manner prescribed] declare that as from the date to be specified in this behalf, all or any of the things specified in clauses (i) to (vi) of subsection (1) which after their vesting in the State under this Act has been vested in a Gaon Sabha or any other local authority, either under this Act or under Section 126 of the Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959 (U.P. Act II of 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 subsection (1) or subsection (2) vesting any of the things specified in clauses (i) to (vi) of subsection (1) in any Gaon Sabha, and the village or part of the village in which that thing is situate lies outside the circle of 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 (U.P. Act XXVI of 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 subsection (1) or subsection (2) vesting any of the things specified in clauses (i) to (vi) of subsection (1) in a local authority other than a Gaon Sabha and the village or the part of the village in which the thing is situate is outside the limits of such local authority, or where after any declaration is made under subsection (1) or subsection (2) the thing vests or as the case may be, had vested in a Nagar Mahapalika under Section 126 of the U.P. 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 a Land Management Committee:

Provided that the local authority shall in the performance, discharge and exercise of its functions, duties and powers under this subsection follow such procedure as may be prescribed.

(5) Where any of the things specified in clauses (i) to (vi) of subsection (1) is vested in local authority other than a Gaon Sabha the provisions of Section 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 things, 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 subsection (1) or subsection (2) vesting the thing resumed in the same or any other local authority (including a Gaon Sabha) and the provisions of subsections (3), (4) and (5), as the case may be, shall mutatis mutandis, apply to such declaration.�

The superintendence, management and control of public utility land vest in Gram Sabha in pursuance to the power conferred under Section 121 of the Act. For convenience, subsection (1) of Section 122A is reproduced as under:

�122A: Superintendence, management and control of land etc. by the Land Management Committee (1) Subject to the provisions of this Act, the Land Management Committee shall be charged, for and on behalf of the Gaon Sabha with the general superintendence, management, preservation and control of all the land, forests within village boundaries, trees (other than trees in a holding, grove or abadi), fisheries, tanks, ponds, water channels, pathways, abadi sites and hats, bazaars and melas vested in the Gaon Sabha under Section 117.�

Under Section 122B of the Act, the Land Management Committee and the Collector have got power to preserve and protect the property of the Gram Sabha and may initiate appropriate action against the unlawful occupants for eviction.

Under Section 122C, the land allotted by the Assistant Collector incharge of the subdivision of his motion or on the resolution of the Land Management Committee for housing side for the members of the scheduled caste and agricultural labourers etc. Under subsection (6) of Section 122C, the Collector has got power to take suo moto action on his own in case it is brought to his knowledge that allotment has been done in an irregular manner. For convenience, subsection (6) of Section 122C is reproduced as under:

�(6). The Collector may of his own motion and shall on the application of any person aggrieved by an allotment of land under this section inquire in the manner prescribed into such allotment, and if he is satisfied that the allotment is irregular, he may cancel the allotment, and thereupon the right, title and interest of the allottee and of every other person claiming through him in the land allotted shall cease.�

Section 198 provides for grant of preferential treatment to certain categories in the matter of grant of lease under Sections 195 and 197 of the Act. Subsection (4a) and subsection (5) provides the power of Collector and Assistant Collector to cancel the lease accordingly under the Act. For convenience, subsection (4) and subsection 4A and subsection (5) of Section 198 are reproduced as under:

�(4). The [Assistant Collector incharge of the subdivision] may of his own motion and shall on the application or any person aggrieved by an allotment of land enquire in the manner prescribed into such allotment and if he is satisfied that the allotment is irregular, he may cancel the allotment and the lease, if any.

(4A) The Collector may on his own motion or on the application of any aggrieved person call for the record of any suit or proceeding under subsection (4) decided by the Assistant Collector incharge of the subdivision for the purpose of satisfying himself as to the legality or propriety of any order passed in such suit or proceedings and if such Assistant Collector incharge of the subdivision appears to have

(i) exercised a jurisdiction not vested in it by law; or

(ii) failed to exercise a jurisdiction so vested; or

(iii) acted in the exercise of jurisdiction illegally or with material irregularity; the Collector may pass such order in the case as he thinks fit and every order passed by the Collector under this subsection shall be final;

(5) No order for cancellation of an allotment or lease shall be made under subsection (4), unless a notice to show cause is served on the person in whose favour the allotment or lease was made or on his legal representative:

Provided that no such notice shall be necessary in proceedings for the cancellation of any allotment or lease where such proceedings were pending before the Collector in any other Court or authority on August 18, 1980.�

Under Section 212 of the Act, it is provided that person occupying the public utility land can be ejected may be on payment of compensation. Under Section 212A, the Legislature has provided summary procedure from ejectment from public utility land. For convenience, Section 212A is reproduced as under:

�212A. Summary procedure for ejectment from land of public utility (1) Without prejudice to the provisions of Section 212, the Chairman, member or Secretary of a Land Management Committee may made an application to the Collector or ejectment from the land of the person in possession of the land referred to in Section 212.

(2) The application under subsection (1) shall be, in addition to and not in derogation of the right of suit, conferred by the said section and shall contain the particulars to be prescribed.

(3) If the Collector is satisfied from the particulars contained in the application and after considering the statement on oath of the applicant that there is sufficient ground for proceeding he shall make an order in writing stating the grounds of his being so satisfied and requiring the person against whom the application is directed to appear within a time to be fixed by him and to show cause why an order of ejectment be not made against him.

(4) Where the person does not appear in pursuance of the notice under subsection (3) or if he appears but does not contest the notice, the Collector may make an order for his ejectment from the land.

(5) If the person appears, in pursuance of the notice under subsection (3) and files any objection, the Collector shall proceed to hear the applicant and the objector and any evidence which they may adduce.

(6) Whereupon the said hearing the Collector is satisfied that the person was admitted as a tenureholder or groveholder of land referred to in Section 212 or being an intermediary brought such land under his own cultivation or planted a grove thereon on or after the eighth day of August, 1946, he shall pass an order for ejectment of the person from the land on payment of such compensation as may be prescribed.

(7) Where an order for ejectment has been passed under this section, the party against whom the order has been passed may institute a suit to establish the right claimed by it but subject to the results of such suit the order passed under subsection (4) or (6) shall be conclusive.

Section 29C of the U.P. Consolidation of Holdings Act, 1953 (in short, Consolidation Act) further protects the land earmarked for public utilization during consolidation operation. Provisions contained in Section 117 of the Act have been made matatis mutandis applicable to such land. For convenience, Section 29C of the Consolidation Act is reproduced as under:

�29C. Vesting of land contributed for public purposes: (1) The land contributed for public purposes under this Act shall, with effect from the date on which the tenureholders because entitled to enter into possession of the chaks allotted to them under the provisions of this Act, as amended from time to time, vest and be always deemed to have vested in the Gaon Sabha (in an area in which Section 117 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 applies and in the State Government in any other area), and shall be utilized for the purpose for which it was earmarked in the final Consolidation Scheme, or in case of failure of that purpose, for each other purposes as may be prescribed.

(2). The provisions of Section 117 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act No.1 of 1951) shall mutatis mutandis apply to such land (vested in the Gaon Sabha) as if the land had vested in the Gaon Sabha by virtue of the declarations made by the State Government under subsection (1) of that section and as if the declarations were made subject to the conditions respecting utilization specified in subsection (1) of this Section.�

Under Section 15 of the U.P. Panchayat Raj Act, 1947 (in short, Panchayat Raj Act), duties in various forms have been assigned to Gram Panchayat for soil conservation, land reform, maintenance of water distribution system, regulation of water supply, construction, repair and maintenance of public wells, tanks and ponds, maintenance of waterways and community assets.

Under Section 17 of the Panchayat Raj Act, it is the duty of the Gram Panchayat to maintain water ways and related matters. For convenience, relevant portion of Section 15 of the Panchayat Raj Act is reproduced as under:

�(ii) Land development, land reform implementation, land consolidation and soil conservation;

(a) Assisting the Government and other agencies in land development, land reform and soil conservation;

(b) Assisting in land consolidation.

(iii) Minor irrigation, water management and watershed development;

(a) Managing and assisting in water distribution from minor irrigation projects;

(b) Construction, repair and maintenance of minor irrigation projects, regulation of supply of water for irrigation purpose.

(xi) Drinking Water:

Construction, repair and maintenance of public wells, tanks and ponds for supply of water for drinking, washing, bathing purposes and regulation of sources of water supply for drinking purposes.

(xiii) Roads, culverts, bridges, ferries, waterways and other means of communication;

(a) Construction and maintenance of village roads, bridges, ferries and culverts;

(b) Maintenance of waterways;

(c) Removal of encroachment on public places.

(xxx) Maintenance of community assets;

Preservation and maintenance of community assets.�

Keeping in view the statutory provisions, referred to hereinabove, after issuance of notification under Section 4 of the Act, all properties shall be vested in the State subject to exception given in the Act itself. Under Section 25 of the Act, Collectors of the districts or his or her nominee will have right to enter all buildings, properties in the estates, vested in the State Government in pursuance to the notification issued under Section 4 of the Act to take over the same. All contracts or agreements relating to any estate covered by notification under Section 4 of the Act shall be void in view of the provisions contained in Section 24 of the Act. It is the duty of the Collector to take over the estate upon publication of notification under Section 24 of the Act which has been given effect from 26.1.1951. The proposition of law has been well settled by the Apex Court and this Court relating to right of the State Government by the judgments reported in 1952 ALJ 677, Raja Mohammad Ali Khan v. State of U.P., AIR 1952 SC 252, Surya Pal Singh v. State of U.P., 1965 ALJ 609, Mohd, Naqi Khan v. State of U.P. and 1967 RD 127, Maharaja Kumar Samendra Chandra Nandy v. State of U.P.

The State Government has ample power under Section 26 of the Act to make rules for the purpose of carrying into effect the provisions contained in Chapter 2 of the Act. In other words, it is the statutory duty of the State Government to preserve and protect the properties vested in the State Government in view of the notification, issued under Section 4 of the Act by framing appropriate rules.

The State Government may issue appropriate order or circular providing vesting of tanks, ponds, water channel, pathways etc. in the Gaon Sabha or any other local authority with certain exceptions. In case, declaration is issued under Section 17 of the Act, then the Gram Sabha or local body as the case may be shall be duty bound to maintain such water channels, pond or lakes. The superintendence, management and control of land vest in the Land Management Committee of the village. The provision relating to grant of lease has been given under Sections 195 to 198 of the Act. However, in case, it is found that a lease of Gram Sabha land has been granted arbitrarily, with material illegality or irregularity, it can be cancelled. A lease of land may be cancelled not only in pursuance to the application moved by an aggrieved person but such step may be taken by the Collector suo moto on its own motion. The letter and spirit of Section 4A of Section 198 of the Act is that the Collector of the District must be conscious to protect the Gram Sabha land. He or she can take suo moto action. Though, an application by the aggrieved party may be moved within the statutory period but the power of Collector to cancel a lease by suo moto action, is not subject to any limitation. I have been fortified by a judgment rendered by the Board of Revenue in a case, reported in 1990 RD page 25, Toofan Singh v. L.M.C. and Others, where the Board of Revenue had held that limitation provided under the Act is only for an action initiated on behalf of private complainant and it is not applicable where the competent authority decided to take suo moto action for cancellation of lease on certain illegalities.

The provisions contained in Section 29C of the Consolidation and Holdings Act, referred to hereinabove, have got mandatory force. The land left over and earmarked during consolidation operation for any public purposes cannot be utilized for other purposes. During publication of final consolidation scheme, in case the land is earmarked for the public utilization, then it cannot be given on lease for other use to any authority for any reason whatsoever. The provisions contained in Section 29C of the Consolidation of Holdings Act cannot be diluted except in accordance with law. Accordingly, in case during consolidation operation, while releasing the final consolidation scheme, a land is recorded as pond, lake or for water harvesting or for any other public use, then no lease can be granted either by the Land Management Committee or by the district authorities for any other purposes. Grant of lease of public utility land shall be void ab initio and such lease can be cancelled by suo moto action in pursuance to the provisions contained in subsection (4A) of Section 198 of the Act.

The Land Management Committee has also got power to eject the persons from unauthorized occupation of the public utility land in pursuance to the provisions contained in Section 212 of the Act. It is the duty of each and every Land Management Committee (in short LMC) to evict the unauthorised occupant in pursuance to the power conferred by Section 212A of the Act.

As discussed hereinabove, under Section 115 of the Panchayat Raj Act, it is the duty of every Gram Panchayat to preserve and protect the public utility land, may be recorded as pond, lake or for any other purposes. Land reform, soil conservation, maintenance of minor irrigation facilities, regulation of supply of water for irrigation purposes, maintenance of public wells, tanks and ponds, maintenance of water ways, removal of encroachment on public places or all the areas for which every Gram Panchayat must take suitable action for their preservation, protection and maintenance in accordance with law. It is the duty of the Gram Panchayats to invest funds provided by the Government for these purposes. Ponds, lakes, low line areas, earmarked for water harvesting and hills are laso community assets and it is the duty of the Gram Panchayats under the Panchayat Raj Act to preserve and maintain them. They can invest funds provided by the State Government for maintenance or restoration of ponds, lakes and hill top.

In view of the above, even if the application moved by the petitioner was beyond time, since under statutory provision, referred to hereinabove, lease could not have been granted by the Gram Sabha or the Sub Divisional Magistrate, it was the duty of Collector to take suo moto action to set aside the lease. Otherwise also, since the lease was granted to the private respondent of a public utility land, i.e. a pond in violation of the statutory provisions, it was void ab initio and it could not have been ignored by the Gram Sabha with the option to take suo moto action in accordance with law in the manner, referred to hereinabove.

Sustainable Development

During hearing, one of the grounds cropped up for adjudication is as to whether the State or its local bodies may raise construction over ponds, lakes and water bodies or hill tops for the sustainable development of the State. According to wikipedia as well as encyclopedia dictionary, sustainable development has been defined as under:

�Sustainable development is a collection of methods to create and sustain development which seeks to relieve poverty, create equitable standards of living, satisfy the basic needs of all peoples, and establish sustainable political practices all while taking the steps necessary to avoid irreversible damages to natural capital in the long term in turn for short term benefits by reconciling development projects with the regenerative capacity of the natural environment. The field of sustainable development can be conceptually broken into four constituent parts: environmental sustainability, economic sustainability, social sustainability and political sustainability.�

50.The Universal Declaration on Cultural Diversity (UNESCO, 2001) elaborates further the concept by stating that �cultural diversity is as necessary for humankind as biodiversity is for nature�, one of the roots of development understood not simply in terms of economic growth, but also as a means to achieve a more satisfactory intellectural, emotional, moral and spiritual existence�.

According to discussion over the topic in Wikipedia, the research work shows that the environment we inherited and that we will transpit to future generations is a combination of nature and culture. The Network of Excellence �Sustainable Development in a Diverse World� on thesis sponsored cultural diversity as a key element of a new strategy for sustainable development.

The United Nations Division for Sustainable Developments had published the list including the following areas within the scope of Sustainable Development. They are as follows:

�Agriculture, Atmosphere, Biodiversity, Biotechnology, Capacitybuilding, Climate Change, Consumption and Production Patterns, Demographics, Desertification and Draught, Disaster Reduction and Management, Education and Awareness, Energy, Finance, Forsts, Fresh Water, Health, Human Settlements, Indicators, Industry, Information for Decision Making and Participation, Integrated Decision Making, International Law, International Cooperation for Enabling Environment, Institutional Arrangements, Land Management, Major Groups, Mountains, Natioal Sustainable Development Strategies, Oceans and Seas, Poverty, Sanitation, Science, Small Islands, Sustainable Tourism, Technology, Toxic Chemicals, Trade and Environment, Transport, Waste (Hazardous), Waste (Radioactive), Waste (Solid), Water.�

While interpreting Art. 21 of the Constitution of India, Hon''ble Supreme Court has settled law that citizens have got fundamental right to live in a hygienic condition with unpolluted fresh air and water. For a better health and dignified life, it is necessary that the citizens must get unpolluted air and water. Natural resources like pond and water reservoirs should be maintained for quality of life which is part and partial of Article 21.

In view of the above, any action of the State which may adversely affect the fundamental right, guaranteed under Art. 21 and other provisions of the Constitution shall not be permissible even if such action of the State is under the garb of sustainable development.

While dealing with the controversy in Ancient and Medieval India, as noticed hereinabove, I find that it has been the duty of rulers not only to preserve the natural resources or water bodies but also to create artificial water bodies so that the peoples of the country may not be short of water supply and the ground water level may be maintained as far as possible.

While dealing with the case relating to the preservation and protection resources including forests, their Lordships of the Apex Court in a case reported in (2006) 1 SCC 1, T.N. Godavarman Thirumulpad v. Union of India and Others, held that the principle of ''trust doctrine'' applies in our country and is based on the idea that the Government is the trustee of natural resources and must maintain it for the free and unimpeded use of general public. The doctrine enjoins upon the Government to protect the natural resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. For convenience, relevant portion from the judgment of T.N. Godavarman (supra) is reproduced as under:

�The duty to preserve natural resources in pristine purity has been highlighted in M.C. Mehta v. Kamal Nath, after considering the opinion of various renowned authors and decisions rendered by other countries as well on environment and ecology, this Court held that the notion that the public has a right to expect certain lands and natural areas to retain their natural characteristics is finding its way into the law of the land. The Court accepted the applicability of public trust doctrine and held that it was founded on the ideas that certain common properties such as rivers, seashore, forests and the air were held by the Government in trusteeship for the free and unimpeded use of the general public. These natural resources have a great importance to the people as a whole that it would be wholly unjustified to make them subject to private ownership. These resources being a gift of nature, should be made freely available to everyone irrespective of their status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. It was held that our legal systembased on English common lawincludes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. The public at large is the beneficiary of these resources.�

In Bittu Sehgal and another v. Union of India and Others, (2001) 9 SCC 181, their Lordships of the Apex Court have emphasized for precautionary measures for the environmental protection and also held that those who pollute the environment must pay for it.

In (2002) 10 SCC 606, T.N. Godavarman Thirumalpad v. Union of India and Others, the Apex Court held that the Government must protect environment. It is a constitutional mandate to protect and improve the environment. It is a commitment for a country wedded to idea of welfare State. The trees, water, land and animal had gained important positions in ancient times. While dealing with the sustainable development of the country, it has been held by the Apex Court that there should not be any depletion of water resources and long term planning must be taken to keep up the national health. Relevant portion from the Apex Court judgment from T.N. Godavarman''s case (supra) is reproduced as under:

�30. As observed by this Court in Rural Litigation and Entitlement Kendra v. State of U.P. natural resources have got to be tapped for the purpose of social development but one cannot forget at the same time that tapping of resources has to be done with requisite attention and care so that ecology and environment may not be affected in any serious way; there may not be any depletion of water resources and long term planning must be undertaken to keep up the national wealth. It has always to be remembered that these are permanent assets of mankind and are not intended to be exhausted in one generation.

31�.Man in order to survive in his planetary home will have to strike a harmonious balance with nature. There may be boundless progress scientifically which may ultimately lead to destruction of man''s valued position in life. The Constitution has laid the foundation of Articles 48A and 51A for a jurisprudence of environmental protection. Today, the State and the citizen are under a fundamental obligation to protect and improve the environment, including forests, lakes, rivers, wildlife and to have compassion for living creatures.

A learned jurist has said, the Rig Veda praises the beauty of the dawn (usha) and worships nature in all its glory. And yet today a bath in the Yamuna and Ganga is a sin against bodily health, not a salvation for the soulso polluted and noxious are these �holy� waters now.

�One hospital bed out of four in the world is occupied by a patient who is ill because of polluted water���Provision of a safe and convenient water supply is the most important activity that could be undertaken to improve the health of people living in rural areas of the developing world.� (WHO).

�Nature never did betray, the heart that loved her. �(Wordsworth) The anxiety to save the environment manifested in the constitution (Fortysecond Amendment) Act, 1976 by the introduction of a specific provision for the first time to �protect and improve� the environment. Man is nature''s best promise and worst enemy.�

In M.C. Mehta v. Union of India and Others, (2004) 12 SCC 118, Hon''ble Supreme Court while reiterating the earlier judgment, reported in 1991 Vol. 1 SCC 598 (AIR 1991 SC 420) Subhash Kumar v. State of Bihar, held that natural sources of air, water and soil cannot be utilized if the utilization results in irreversible damage to environment. The Supreme Court was deeply concerned towards the accelerated degradation of the environment on account of lack of effective enforcement of law. Sustainable development does not mean that State activities may be in such form which may amount to compromise with the right of future generation to enjoy free air, unpolluted water and nature''s other products. Relevant portion from the judgment of M.C. Mehta (supra) is reproduced as under:

�In M.C. Mehta v. Union of India, this Court held that life, public health and ecology has priority over unemployment and loss of revenue. The definition of ''sustainable development� which Brundtland gave more than 3 decades back still holds good. The phrase covers the development that meets the needs of the present without compromising the ability of the future generation to meet their own needs. In Narmada Bachao Andolan v. Union of India, this Court observed that sustainable development means the type or extent of development that can take place and which can be sustained by nature/ecology with or without mitigation. In these matters, the required standard now is that the risk of harm to the environment or to human health is to be decided in public interest, according to a �reasonable person''s� test [See: Chairman Barton; The Status of the Precautionary Principle in Australia (Vol. 22, 1998, Harv. Envtt. Law Review, p.509 at p.549A) as referred to in para 28 in A.P. Pollution Control Board v. Prof. M.V. Nayudu.]

In one another judgment, reported in (2004) 9 SCC 362, N.D. Jayal and another v. Union of India and Others, Hon''ble Supreme Court reiterated earlier principle for ecological and environmental protection and held that without strict compliance of law, the right to environment under Art. 21 cannot be guaranteed. Sustainable development is permissible only to the extent it does not affect the fundamental right guaranteed to citizens.

In a case, reported in (2006) 3 SCC 434, Bombay Dyeing and Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group and Others, the aforesaid principle has been reiterated by the Apex Court with emphasis that sustainable development may proceed subject to limitation of Arts. 21, 48A, 51A (g) and 18, 17A and 17B of Schedule VII List 3.

In the case of Karnataka Industrial Areas Development Board v. C. Kenchappa and Others (2006) 6 SCC 371, the Apex Court had again emphasized for environmental protection and maintenance of ecological balance by preserving natural resources keeping in view the constitutional mandate enshrined in Art.21, 48A and 51A(g). Refering the Rio Conference of 1942, Hon''ble Supreme Court held that the sustainable development must be sustained by nature with or without mitigation. A delicate balance must be maintained with nature and developmental activities. Sustainable development at the cost of destruction of natural resources is not permissible under our constitutional scheme. Relevant portion of the judgment of Karnataka Industrial Areas Development Board (supra) is reproduced as under:

�The concept of public trusteeship may be accepted as a basic principle for the protection of natural resources of the land and sea. The public trust doctrine (while found its way in the ancient Roman Empire) primarily rests on the principle that certain resources like air, sea, water and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature should be made freely available to everyone irrespective of their status in life. The doctrine enjoins upon the Government and its instrumentalities to protect the resources for the enjoyment of the general public.�

In another case reported in (2006) 3 SCC 549, Intellectuals Forum, Tirupathi v. State of A.P. and Others, while dealing with the principle of �doctrine of public trust�, Hon''ble Supreme Court held that the shelter is one of the basic human needs just next to food and clothing, the Court should make a distinction between the Court''s general obligation for the public benefit and the demanding obligation which it may have a trust of certain public resources. Relevant portion of the said judgment is reproduced as under:

�76. The Supreme Court of California, in National Audubon Society v. Superior Court of Alpine Country also known as Mono Lake case summed up the substance of the doctrine. The Court said:

�Thus the public trust is more than an affirmation of state power to use public property for public purposes. It is an affirmation of the duty of the State to protect the people''s common heritage of streams, lakes, marshlands and tidelands, surrendering the right only in those are cases when the abandonment of the right is consistent with the purposes of the trust.�

This is an articulation of the doctrine from the angle of the affirmative duties of the State with regard to public trust. Formulated from a nugatory angle, the doctrine does not exactly prohibit the alienation of the property held as a public trust. However, when the State holds a resource that is freely available for the use of the public, it provides for a high degree of judicial scrutiny on any action of the Government, no matter how consistent with the existing legislations, that attempts to restrict such free use. To properly scrutinize such actions of the Government, the Courts must make a distinction between the Government''s general obligation to act for the public benefit, and the special, more demanding obligation which it may have as a trustee of certain public resources (Joseph L. Sac �the Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention:�, Michigan Lal Review, Vol. 68, No.3 (Jan.1970) pp.471566)

Though Hon''ble Supreme Court has not interfered with the construction raised over certain land which was earlier water reservoir but proceeded to hold that it is the duty of the State authorities to maintain the water reservoirs and Government has got no right to let out a property which has been reserved as water reservoir. Relevant portion from the judgment of Intellectuals Forum (supra) is reproduced as under:

�91. It is true that the tank is a communal property and the State authorities are trustees to hold and manage such properties for the benefits of the community and they cannot be allowed to commit any act or omission which will infrings the right of the Community and alienate the property to any other person or body.�

Therefore under the present circumstances, the Court should do the most it can, to safeguard the two tanks in the question. However, due to the persistent developmental activities over a long time, much of the natural resources of the lakes have been lost, and considered irreparable. This, though regrettable, is beyond the power of this Court to rectify.�

In view of the above, from the dictum of the Hon''ble Supreme Court in the cases of Intellectuals Forum, referred to above, State or its instrumentalities have got no right to raise construction or develop colonies or the land which have been entered into revenue records as lake, pond or hill top

In one recent judgement reported in (2006) 6 SCC 543, Susetha v. State of T.N. and Others, cases referred to above were considered and the principle enuniciated thereon by the Apex Cout has been reiterated. However, in the cases of Susetha (supra), the water reservoir, namely, the tank was artificially created by temple and it does not seem to be a public property. Hence, the Apex Court had not interfered with the controversy but the proposition of law settled and discussed hereinabove relating to sustainable development has been reiterated by the Supreme Court in the case of Susetha (supra). Relevant portion from the judgment is reproduced as under:

�14. Concededly, the water bodies are required to be retained. Such requirement is envisaged not only in view of the fact that the right to water as also quality life are envisaged under Article 21 of the Constitution of India, but also in view of the fact that the same has been recognized in Articles 47 and 48A of the Constitution of India. Article 51A of the Constitution of India furthermore makes a fundamental duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wildlife, (See Animal and Environment Legal Defence Fund v. Union of India, M.C. Mehta (Badkhal and Surajkund Lakes Matter) v. Union of India and Intellectuals Forum v. State of A.P.)

The case at hand must be judged having regard to the aforementioned principles in mind. The respondents categorically denied and disputed that there is any water shortage in the village. The village is situated on both sides of the National highway. It is situated near a sea and having five water tanks in or around therein. It is, therefore, difficult to accept that there had been acute water shortage in the village, as was submitted by Ms. Malhotra. The tank in question is not a natural tank. Only rain water could be collected in it. It has been a dumping ground for a long time.�

Thus, in view of the law propounded by the Supreme Court in the case of Susetha (supra) also, it is evident that while proceeding with sustainable development, State or its instrumentality has got no right to convert the natural water resources or hill top for residential or other use.

Keeping in view the law, laid down by the Supreme Court, it is evident that under the garb of sustainable development, State does not have got right to convert the water bodies and reservoirs existing in the form of ponds and lakes to develop colonies or commercial complexes.

Eviction of unauthorized occupants

As discussed hereinabove, under Section 198, 122B and other provisions contained in the U.P.Z.A. & L.R. Act and the Rules framed thereunder, the State has got power to dispossess the persons who are in unauthorized occupation of land earmarked as lake, pond or hill top. The question whether the Gram Sabha is the owner or local bodies or the developmental authorities or unauthorized occupants is not material. If the pond, lake or other water reservoirs are in unauthorized occupation, such occupants may be evicted from unauthorized occupation. Section 122B of the Act contains sufficient procedure for due compliance of principles of natural justice and in case after due hearing to the parties, it is found that the person concerned in not in possession of Gram Sabha land or a property belonging to State, the Assistant Collector has got ample power to drop such proceedings. In any case, if a finding has been given by the Assistant Collector and approved by the revisional authority, even then the aggrieved person will have right to file a regular suit. Needless to say that every proceeding of eviction under the Act is summary proceeding and the aggrieved party has got right to approach the competent Court by preferring a regular suit. For convenience, Subsection (3), subsection (4) and subsection (4A) and subsection (4D) of Section 122B of the Act are reproduced as under:

�(3). If the person to whom a notice has been issued under subsection (2) fails to show cause within the time specified in the notice or within such extended time not exceeding [thirty days] from the date of service of such notice on such person, as the Assistant Collector may allow in this behalf, or if the cause shown is found to be insufficient, the Assistant Collector may direct that such person may be evicted from the land and may, for that purpose, use, or cause to be used such force as may be necessary and may direct that the amount of compensation for damage, misappropriation or wrongful occupation be recovered from such person as arrears of land revenue.�

�(4). If the Assistant Collector is of opinion that the person showing cause is not guilty of causing the damage or misappropriation or wrongful occupation referred to in the notice under subsection (2), he shall discharge the notice.�

�(4A). Any person aggrieved by the order of the Assistant Collector under subsection (3) or subsection (4) may, within thirty days from the date of such order, prefer a revision before the Collector on the grounds mentioned in clauses (a) to (c) of Section 333.�

�(4D). any person aggrieved by the order of the Assistant Collector or Collector in respect of any property under this section, may file a suit in a Court of competent jurisdiction to establish the right claimed by him in such property.�

It is settled provision of law that Section 122B is applicable to a land belonging to Gram Sabha or the local authority vide 1980 RD 21, Chheda Singh v. Gaon Sabha.

It is also settled law that the Revenue Court has got power to direct for demolition of construction in case a Gram Sabha land or the land of the local bodies which have been unauthorisedly occupied by any person, vide 1994 RD 442, Bali Karan v. Gaon Sabha, 1992 RD 381, Gaon Sabha v. Bhartoo, 1992 RD 236, Gaon Sabha v. Amarnath, 1981 RD 119, Uttam Singh v. Board of Revenue, 1994 RD 189, State of U.P. v. Roop Ram.

As discussed hereinabove, every order passed by the SubDivisional Magistrate shall be subject to regular suit in view of the statutory provisions contained in Subsection (4D) of Section 122B of the Act. The legislatures to their wisdom have taken sufficient precaution to check the arbitrariness in a proceeding under Section 122B of the Act. This Court also while interpreting the provisions contained in Section 4D of the Act held that the aggrieved party can file a regular suit against an order passed under Section 122B of the Act, vide Ram Kishan v. Collector, 1998 (2) AWC 1423, 1998 RD 429, Smt. Sunehri v. Collector, Ghaziabad.

It is further held by this Court that even without filing a revision against the order passed under Section 122B of the Act, aggrieved person is competent to file a regular suit, vide 1996 RD 497, Babu Lal v. Collector, Jhansi, 1996 RD 444, Shambhoo Nath v. C.R.O.

It is also settled proposition of law that against an order passed under Section 122B of the Act, a writ petition under Article 227 is ordinarily not maintainable vide 2000 RD 339, Kali Charan v. A.D.M., Agra, [2000(18) LCD 662], 1997 RD 339, Khacheru v. Addl. Collector, 1996 RD 454, Kajoda v. A.D.M.

Relevant portion from Kali Charan''s case (2000 RD 339) is reproduced as under:

�5. In the case of Shambhoo Nath v. Chief Revenue Officer/Addl. Collector, Allahabad, it was held that in a proceeding under Section 122B of the Act, if title is involved, the same can be conclusively determined in suit. Subsection (4E) is not an absolute bar. Subsection (4D) enables filing of suit by aggrieved person, against both orders subject to subsection (4E). There is no contradiction in the respective subsections. Subsection (4E) makes it clear that a suit against order under subsection 4A is maintainable.�

�6. Since the Collector has passed the under subsection (4A) the embargo provided in subsection (4E) is not attracted. Therefore, the writ petition is dismissed in view of adequate alternative remedy. Inasmuch as sitting in writ jurisdiction it is not possible for this Court to ascertain the question of title relating to the property. It will be open to the petitioner to file a suit within a period of three months from today, if he is so advised. However, interim orders, if any passed in this petition shall continue for a period of three months from date. It will be open to the petitioner to seek advantage of Section 14 of the Limitation Act, if circumstances so demand.�

In view of the above, any summary proceeding initiated by the competent authority to evict the unauthorized occupants from the lake, pond or other water reservoir shall be subject to adjudication of dispute by the competent Civil Court. Accordingly, where there is serious dispute relating to title, an aggrieved party has got option to file a regular suit in the Court of competent jurisdiction to ventilate grievance.

I have occasion to decide a case under the U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (for short �the Public Premises Act�). After considering a catena of judgments of the Apex Court, it has been held in the case reported in [2006 (24) LCD 733] State of U.P. (Nazul) v. Addl. District Judge, Lucknow and Others, that a person against whom a proceeding is initiated under the Public Premises Act, has got an option to file a regular suit in the event of serious dispute relating to title. The judgment (supra) has been affirmed by Hon''ble Supreme Court in Special Leave Petition No.6693/2006, Gomti Construction v. State of U.P. and Others. Order passed by Hon''ble Supreme Court is reproduced as under:

�Hon''ble MR. Justice Ashok Bhan

Markandey Katju

Permission granted to file the SLP.

Delay condoned.

Heard.

There are very serious disputed questions of fact involving the title. Such disputed questions cannot be decided in summary proceedings under the U.P. Public Premises Act, 1972 (for short �the Public Premises Act�). The special leave petition are dismissed reserving liberty with either of the parties to get their title determined from Civil Court. If any such suit is filed, then the same shall be decided by the Civil Court in accordance with law without being influenced by any of the findings recorded or observations made in the impugned order of the High Court arising against the order passed under the Public Premises Act. Needless to say, we have not expressed any opinion on the merits of the case.�

SOME INDIVIDUAL UNAUTHORISED OCCUPANTS

During the course of hearing, an anonymous letter was received relating to unauthorized occupation of Chhota Tikait Rai Talab. By that time, this Bench had already directed the State Government to submit a report relating to unauthorized occupation of water reservoir in the urban area. In consequence thereof, the Secretary, Board of Revenue has submitted report showing the status of water reservoir existing after independence and in the current year of 2006. The attention of this Court was also drawn towards the fact that the ground water level in the State of U.P. is falling down every year and in Lucknow at the rate of almost 56cm. therefore, since this bench was exercising jurisdiction relating to cases covered by Revenue Law, i.e. Z.A.L.R. Act, Land Revenue Act, U.P. Consolidation of Holdings Act, hence the anonymous letter, received was not sent to Hon''ble Chief Justice due to its being related to a pending controversy. The jurisdiction which this Bench was exercising was in pursuance to power delegated by Hon''ble Chief Justice printed in the cause list. Needless to say that the Secretary, Board of Revenue was expected to cover the area of Chhota Tikait Rai Talab also which was alleged to be encroached by a local inhabitant.

The report submitted by the SubDivisional Magistrate relating to Chhota Tikait Rai Talab, prima facie affirms that it has been encroached by a local person. Accordingly, an order for eviction in accordance to law was passed. Obviously, the SubDivisional Magistrate has proceeded to evict the person concerned by issuing a notice in pursuance to power conferred by Section 122B of the Act. The decision taken by the SubDivisional Magistrate or the revenue authority was subject to finding recorded by a Court of competent jurisdiction in regular suit in view of the statutory provisions contained in subsection (4D) of Section 122B of the Act, as discussed hereinabove. Even ordinarily, the writ petition is not maintainable against the finding recorded by the SubDivisional Magistrate in a proceeding under Section 122B of the Act.

Needless to say, this Court was exercising power against the revisional order relating to private dispute. The final finding recorded by this Court is subject to remedy available under Article 136 of the Constitution of India to approach the Apex Court or in the event of title dispute, aggrieved party may approach the competent Court through regular suit.

Long back, a Full Bench of this Court in a case, reported in 1997 LCD 921, Smt. Anarkali v. Deputy Director of Consolidation, held that the power to file an appeal, revision or review is statutory power and in absence of any authorization by statute, such power cannot be exercised.

The respondents have tried to submit that in the event of any adverse pronouncement, some time may be granted to file a special appeal. In this context, it may be observed that so far as this Court is concerned, it has been settled by catena of judgments while interpreting provisions contained in Chapter VIII Rule 5 of the Rules of the Court that special appeal shall not be maintainable against the order passed by the Hon''ble Single Judge of this Court where the impugned order is an appellate or revisional order passed by the competent authority vide; 1995 (13) LCD 670; LaKhan Singh v. State Bank of India, 1995 (13) LCD 7; Lucknow University v. Ashwani Kumar Walia, 2001 (19) LCD 468; Committee of Management, Adarsh Vidyalaya Samiti, Sirodhan, Bulandshahr v. Prescribed Authority/Up Zila Magistrate, Sikandrabad, Bulandshahr, 1994 (1) UPLBEC 24; Sita Ram Lal v. District Inspector of Schools, Azamgarh and Others, 1998 (16) LCD 240; Shyam Singh v. Meerut Mandal Vikas Nigam, Meerut, 1999(17) LCD 603; Ram Kripal Singh v. U.P. State Road Transport Corporation, Lucknow, 1998 (16) LCD 893; Rajni Kant Sahai v. State of U.P., 1999 (1) UPLBEC 697; J.P. Agarwal v. P.A. (Sub. D.M.), Sadar , Deoria and Others, 1998 (1) UPLBEC 711; Vijay Kumar Mahendra v. Registrar, Hon''ble High Court of Judicature at Allahabad and Others, 1995 (3) UPLBEC 1786; Kaushal Kishore Singh v. Shubh Karan Misra and Others, 1999(2) UPLBEC 1617(Alld); R.K. Singh v. U.P.S.R.T.C., Lucknow and Others.

It is also settled law that appeal, review and revisions are the statutory remedies and unless Act or statute empowers a body or authority or even this Court, to exercise appellate power in certain matter, then such jurisdiction can not be exercised for any reason whatsoever. The jurisdiction cannot be conferred by mere acceptance, acquiescence, consent or by any other means. It can be conferred only by legislature or by body empowered to do so to exercise appellate jurisdiction by a Court or authority.

In Union of India v. Devkinandan Agrawal, AIR 1992 SC 96, the Hon''ble Apex Court has observed that �the Court cannot usurp legislative functions. The Court cannot rewrite the legislation for the reason that it had no power to legislate. The power of legislation has not been conferred on the Courts.�

In Karnal Improvement Trust v. Prakashwanti, (1995) 5 SCC 159, the Hon''ble Supreme Court has observed that acquiescence does not confer jurisdiction and an erroneous interpretation equally should not be perpetuated and perpetrated defeating of legislative animation. A similar view has been taken in U.P. Rajkiya Nirman Nigam Ltd. v. Indure Pvt. Ltd., AIR 1996 SC 1373.

In Sardar Hasan Siddique v. State Transport Appellate Tribunal, AIR 1986 All. 132, the Division Bench of Allahabad High Court has observed that a Court or a tribunal cannot derive jurisdiction apart from the statute. No amount of acquiescence, waiver or the like can confer jurisdiction if a Tribunal is lacking, the doctrine of nullity will come into operation and any decision taken or given by such a Tribunal will be a nullity.

Similarly in A.R. Antuley (supra), the Hon''ble Supreme Court has observed as under:

�A decision touching the jurisdiction���has to be not only consistent with the fundamental rights guaranteed by the constitution, the same cannot even be inconsistent with substantive provisions of the statutory law���the criteria of a right to an appeal is an act which requires legislative Authority neither an inferior Court nor the superior Court nor both combined, can create such a right, it being one of the limitations and exception of jurisdiction.�

In view of above, any concession made by any lawyer which is contrary to the provisions of law or even a consent decree which is in violation of the statutory provisions, remains unenforcible and inconsequential, (vide Smt. Nai Bahu v. Lala Ram Narain and Others, AIR 1978 SC 22; and Natraj Studio Pvt. Ltd. v. Navrang Studio and another, AIR 1981 SC 531).

In Kondiba Dagadu Kadam v. Savitribai Sopan Gujar & Ors., AIR 1999 SC 2213, the Hon''ble Supreme Court held as under:

�It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigant being a substantive statutory right it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before an appeal can be maintained and no Court has the power to add to or enlarge those grounds. The appeal cannot be decided on merit on merely equitable jurisdiction.�

In view of the above, it is evident that the appeal is a statutory right which can be created only by the legislature and it does not lie by acquiescence/consent of the parties or even this Court is not competent to create the appellate forum if not provided under the statute.

So for as Kathauta Lake is concerned from the reports, it is obvious that Lucknow Development Authority has not taken care to check occupation and construction on the ponds and lakes, situated in the city of Lucknow or its surrounding areas. While planning out for construction of colony, it was incumbent upon the Lucknow Development Authority or U.P. Housing Board to keep the ponds and lakes at their place intact. Colonies should have been developed in a manner without affecting the natural water reservoirs, existing in Lucknow, more so when every year, underground water level is going down at the rate of 56cm. In case, it goes on, then the coming generation will not get sufficient water either for drinking or for irrigation after lapse of almost fifty years. It shall be appropriate that the Lucknow Development Authority as well as the Housing Board and other developmental authorities of the State should restore ponds and lakes at all places where construction has been planned or made at its own cost and allottees may be given different land than present one in terms of agreement. The developmental authorities must bear the cost for restoration of ponds and lakes keeping in view the principle enunciated by the Supreme Court in the case of Bittu Sehgal (supra). However, by all means, it shall be necessary that the developmental authorities must pay for their lapses and create ponds and lakes on their own cost for the purposes of water conservation to meet out the alarming situation in the State of U.P. Hon''ble Supreme Court also held so in the case of Hinch Lal Tiwari v. Kamala Devi and Others, (2001) 6 SCC 496. Relevant portion from the Hinch Lal''s judgment is reproduced as under:

�14. For the aforementioned reasons, we set aside the order of the High Court, restore the order of the Additional Collector dated 25.2.1999 confirmed by the Commissioner on 12.3.1999. Consequently, Respondents 1 to 10 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 10 do not vacate the land with the said period the official respondents i.e. Respondents 11 to 23 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 villagers. Further it will also help in maintaining ecological balance and protecting the environment in regard to which this Court has repeatedly expressed its concern. Such measures must begin at the grassfoot level if they were to become the nation''s pride.�

During the course of hearing, when the controversy relating to Kathauta Lake and some other water reservoirs was brought to the notice of this Court, the Vice Chairman, Lucknow Development Authority was summoned. On behalf of Lucknow Development Authority, a statement was made that no part of Kathauta Lake has been encroached and allotted for construction of building. However, when the physical verification and demarcation of Kathauta Lake and adjoining parts were done by the Sub Divisional Magistrate concerned, it was found that certain ponds, which were part of Kathauta Lake, were falsifies the statement made on behalf of Lucknow Development Authority. If necessary, this Court may proceed against the officers of Lucknow Development Authority for making false statement and not placing correct facts before this Court by passing order separately.

A lake, namely ''Moti Jhil'' has also come to light, a portion of which has been encroached by private persons. Incidentally, on physical verification, the lake has been found but in the revenue record, it is missing. The district authorities may take appropriate steps for demarcation and restoration of Moti Jhil.

During the course of hearing on March 14, 2007, it was submitted by learned counsel for Lucknow Development Authority that a policy decision was taken by the Government and an order was issued on 30.6.2004, directing all the District Magistrates of the State of U.P. to permit for construction of houses during planned development. A copy of the order dated 30.6.2004 has been filed as Annexure CA4 to the affidavit filed by Mr. Ram Bilas, Secretary, Lucknow Development Authority. I am afraid to hold that whether such order could have been issued by the State Government contrary to various judgments of the Apex Court, referred to in the preceding paras. However, the validity of the Government Order cannot be looked into in the present proceedings. The arguments, advanced by the learned counsel for the Lucknow Development Authority, as noted in the order dated 14.3.2007, is reproduced as under:

�An affidavit filed by the Secretary, Board of Revenue and Director, Ground Water Department, taken on record.

Lucknow Development Authority has moved an application for deferring of the present proceeding on the ground that action taken by this Court on the basis of anonymous letter in the present proceeding relating to Tikat Rai Talab is subjudice before the Division Bench of this Court in Special Appeal No.212 of 2007. However, perusal of order dated 1.3.2007 passed by Division Bench of this Court indicates that Division Bench had not stayed the proceeding of present writ petition. Undoubtedly, the controversy relates to Tikat Rai Talab stand on different footing for which no instruction was sought by this Court in its original proceeding. Accordingly, I do not find any reason to stay the proceeding of present writ petition.

Shri Krishna Chandra, learned counsel for Lucknow Development Authority has proceeded to argue the case with a statement that State Government had issued a notification dated 5.9.1986 and transferred the adjoining area, under Section 117 of the U.P.Z.A. and L.R. Act, to local authority means Nagar Nigam, Lucknow. By order dated 1.9.1990 Government had permitted the Lucknow Development Authority to take over the land which was transferred to local authority. Lucknow Development Authority had taken over the land in question for planned development in the year 1994.

According to Shri Krishna Chandra in the year 2004 Government had taken a policy decision for allocation and allotment of land for the purpose of planned development including the portion of ponds and lakes and other public utility land.

According to Shri Krishna Chandra the Government Order dated 30.6.2004 confers power on the Lucknow Development Authority to utilize public utility land including ponds and lakes for the purpose of planned development. It has been submitted that the lands in question were allotted to private persons while proceeding with the extension of Gomti Nagar Scheme in the year 2005.

In pursuance to order passed by this Court, Secretary, Lucknow Development Authority is present in person.

The Sub Divisional Magistrate concerned had submitted a report which indicates that adjoining pond of Kathauta Lake were occupied and let out to the private builders. The record shows that allotment was done in the month of December, 2005 to various private persons for construction of shopping complex and houses.

Shri Krishna Chandra, learned counsel for the Lucknow Development Authority submits that Lucknow Development Authority has got right to allocate the land in terms of Government policy and decision for the purpose of plan development.

A statement has been made by Shri Krishna Chandra on the basis of instruction received from Shri Ram Bilas Yadav, Secretary, Lucknow Development Authority that no portion of Kathauta Lake has been acquired for construction of houses and shopping complex. However, the report submitted by Sub Divisional Magistrate indicates that the ponds in question over which construction were going on they are the adjoining part of Kathauta Lake. According to report of Sub Divisional Magistrate, Kathauta Lake has been spreaded into various plots having different number. However, the report submitted by Sub Divisional Magistrate has not been denied by the respondent''s counsel.

It has also been submitted by Shri Krishna Chandra that Hinch Lal Tewari''s judgment of Apex Court reported in 2001 (6) SCC 496, shall not be applicable under the facts and circumstances of the present case.

When a query was made by this Court as to why after pronouncement of Apex Court judgment in the case of Hinch Lal Tewari (supra), the State Government had issued a notification in the year 2004 for conversion of land recorded in revenue record as ponds and lakes and other public utility lands to raise construction, no satisfactory reply could be given by the respondents.

Shri Krishna Chandra further proceeded to submit that this Court lacks jurisdiction to interfere with the decision taken by the Lucknow Development Authority relating to allotment of land as present writ petition has not been filed for redressal of grievance in public interest.

I have heard Shri Umesh Kumar Shukla, learned counsel for the petitioner, Shri Krishna Chandra, learned counsel for the Lucknow Development Authority and Shri I.P. Singh, learned Chief Standing Counsel as well as learned Standing Counsel.

Judgment reserved.�

As already discussed hereinabove, Lucknow is going to be water starved city on account of decrease of underground water level at the rate of 56cm every year. Accordingly, as discussed hereinabove, planned development at the cost of water is not permissible in view of the law settled by Hon''ble Supreme Court, referred to hereinabove. Various provisions of the U.P.Z.A. & L.R. Act and other statutory Acts, discussed in the preceding paras make it amply clear that the public utility land cannot be converted for private use or for construction of houses or commercial complexes. The Government is trustee of natural resources and it has to maintain the natural resources for the use by coming generation. Transfer of ponds or lakes to local authorities or developmental authorities does not mean that it gives licence to them to convert the natural resources for other use like construction of houses or complexes. At least, after the judgment of the Apex Court in Hinch Lal Tiwari''s case (supra) reported in (2001) 6 SCC 496, the Government and its local bodies should not have allotted the ponds and lakes for construction of houses or shopping complexes. The spirit of judgment of Hinch Lal Tiwari''s case (supra) and other judgment of the Apex Court, referred to hereinabove, is that the fundamental right to avail water, air etc. should not be affected while proceeding with the planned development of a city. The law laid down by the Apex Court in various cases, referred to hereinabove, are binding under Art. 141 of the Constitution and the State authorities have got no right to issue any order or direction which may affect the fundamental rights of the citizens keeping in view the dictum of the Apex Court. While deciding the present controversy, it is clarified that this Court is not passing any order, keeping in view the individual case whether it is Kathauta Lake or Moti Jhil or any other pond, situated in the State of U.P. It is for the authorities to look into the controversy keeping in view the directions, issued by this Court in the present judgment. The disputed question of title, as discussed in the preceding paras, cannot be adjudicated by this Court. The authorities may proceed in accordance with law, keeping in view the observations in the present judgment. However, no pond or lake or hill top should suffer extinguishion after judgment of Apex Court in the case of Hinch Lal Tiwari (supra). For Others, the authorities may take decision casewise and may approach the State Level Monitoring Committee constituted by the present judgment hereinafter.

Keeping in view the dictum of Hinch Lal Tiwari''s case (supra), coupled with the scarcity of water in the State of U.P., all developmental authorities including Lucknow Development Authority, local bodies, corporations and Housing Board, should not have proceeded with developmental activities for construction of houses and commercial complexes, offices and other buildings by occupying ponds and lakes, situated in the cities and in the surrounding areas of the cities of the State of U.P. Ponds, lakes and hill tops must be preserved by the developmental authorities with due maintenance as trustee to transfer them to coming generation for the quality of life as observed by the Hon''ble Supreme Court in the case of Hinch Lal Tiwari (supra). All these natural resources may be converted as picnic spot for citizens to enjoy quality of life as well as to conserve and maintain the �lifeline� in the form of water reservoir or hill top. In case some pond or lake is extinguishing/dying out because of dumping of garbage or for any other reason whatsoever, it shall be the duty of the State and its local bodies to restore them in their natural form.

Water shortage

According to a report of Panel on Climate Change (in short IPCC) released in Paris in February, 2007, the climate change in the world is real and mindmade (Ref. : Indian Express, February 12, 2007). 25000 scientists all over the world prepared a report and recorded a finding that climate change all over the world including global warming is going to be a real danger for human species. The report says that the temperatures in the next century are expected to go up by 2.5 to 4.5 degrees Centigrade. The statistical data shows that India will also be one of the countries which shall face acute shortage of water and threat to food security. It is a wake up call for Indian policy makers. According to the finding of IPCC (supra), in the year 2030.

(a) Himalayan glaciers will shrink from 500,000 sq. km. to 100,000 sq. km.

(b) Per capita availability of water will shrink from 1,800 cubic m to 1,000 cubic m, making India a waterscarce country.

(c) Agriculture productivity is likely to shrink by 30%.

According to the report, most serious potential threat arising from climate change in Asia, including India is water scarcity which in some way trigger other impacts, like fall in agriculture productivity. In absolute sense, India as a whole is likely to move from the category of water stressed to waterscarce.

For a population estimate of 1800 million in 2050, the gross per capita water availability will decline from less than 1800 cubic metre per year in 2001 to 1000 cubic m. India is waterstressed today and is likely to be waterscarce by 2050 (Internationally, less than 1700 m 3/person/yr is water stressed). The report of IPCC (supra) requires for change in attitude to develop new water infrastructure and water management system. Preference given to construction of concrete building instead of water management shall be foolish act amounting to cutting of own throat and depriving the coming generation to spell quality of life on this earth.

An article, written by a research scholar, �Francesco Sindico�, was published in the New Zealand Journal of Environmental Law, Vol. 9, pp. 209238, reprinted in, �the Icfai Journal of Environmental Law� January, 2007, page 10. In near future, because of climate change and several water related problems, there may be war between States sharing water from a river flowing in two or more countries. Learned author had warned that in case underground water is not governed appropriately, violent conflicts may arise in future between reparian States. Because of water level of see rise and water scarcity, there shall be threat to human security. Certain portion from the article (supra) is reproduced as under:

�The acceleration of climate change will lead to several waterrelated problems. On the one hand, rivers will inevitably carry less water in regions where rain precipitation will decrease and desertification will increase. On the other hand, water scarcity will foster States to look for new sources of fresh water. Both examples of future waterrelated problems may lead to international tension����.�

���..In sum, water governance is a very delicate task, and it has led in the past to tensions between States. Climate change will lead to further water scarcity and, if international rivers and underground water are not governed appropriately, violent conflicts may arise in the future between riparian States. Therefore, waterrelated problems could be one of the sparks of a future conflict���.�

����.While sea rise and water scarcity are the ultimate threats to human security, it is the current climate change trend, due to anthropogenic interference, that is responsible for them. Secondly, if the environmental problem is linked to other humaninduced problems and to an incorrect governance of the environmental resource, human security problems may escalate into a violent conflict between States.�

Alarming water crisis in the State of U.P.

According to the recent report, published by underground water department of the State of U.P. in its journal of June, 2006, the average water decrease in seven major cities is as under:

Sl. No. Name of city Average decrease in water level (in CM/yr)

Lucknow 56

Kanpur 45

Agra 40

Varanasi 23

Aligarh 40

Ghaziabad 22

Mathura 36

95A. Apart from above, an affidavit filed by Mr. M.M. Ansari, Director, Ground Water Department of U.P. also indicates the imminent danger which the State of U.P. may face in coming days because of decrease of ground water level. Some of the tehsils of Baghpat, Fatehpur, Agra, Allahabad, Ghazipur, Jaunpur, Kanpur Dehat, Kanpur Nagar, Mirzapur, Moradabad, Muzaffarnagar, Saharanpur, Bareily, Bulandshahr, Badaun, Chandauli, Dewaria, Etah, Faizabad, Firozabad, Gonda, Hamirpur, Hardoi, Hathras, Jalaun, Jhansi, Jyotiba Phule Nagar, Kausambi, Kushinagar, Lucknow, Lalitpur, Maharajganj, Maunathbhanjan, Raibareilly, Santkabir Nagar, Shahjahanpur, Shrawasti, Siddharthnagar, Sitapur, Sonbhadra, Sultanpur, Unnao and Varanasi are facing decrease of underground water level at the rate of 10 to 50 cm per year as per the statistical date collected by Underground Water Department in premansoon season.

All other districts are also facing the problem of decrease of ground water level at the rate of 5 to 10 cm per year.

The affidavit filed by the Secretary, Board of Revenue shows that in majority of the districts of the State of U.P., the area of ponds, lakes have been decreased on account of unlawful construction, unauthorized encroachment or because of construction made by the developmental authorities.

It would be too late for the State authorities in case no immediate steps are taken to regulate the underground water level by restoring, preserving, protecting and maintaining not only the natural water reservoir bodies but also by creating artificial ponds and lakes all over the State. This can be done by every Gram Sabha, local bodies or local authorities from their own funds. The developmental authorities like Lucknow Development Authority or other authorities engaged in planned development may convert the natural water resources as picnic spot as held by Hon''ble Supreme Court in the case of Hinch Lal Tiwari (supra). The argument advanced by the learned counsel for the Lucknow Development Authority that the waste land or dead ponds or lakes may be used for planned development seems to be not sustainable. While proceeding with the developmental activities, it shall be appropriate for the developmental authorities to restore, improve and maintain the ponds and lakes and construction may be done excluding the areas covered by water bodies, as held by Hon''ble Supreme Court in the case of Hinch Lal Tiwari (supra).

The coming generation will not forgive the present one in case we fail to transfer the natural water reservoirs and hill tops to them for a quality of life where there should not be water crisis. The instances given in the present judgment in the preceding paras reproducing the opinion of the experts of the field and historical events as well as the steps taken in some countries of the world amply clears that without any further delay, the Government must take steps for restoration of water bodies and also should create artificial water reservoirs to charge the underground water reservoirs.

For the sake of repetition, needless to say that in case the State takes steps in accordance with law affecting rights of any person or where the disputed question of title is involved, such person will have ample opportunity to defend his or her cause in the manner discussed in the present judgment.

FINDINGS

The discussions, made hereinabove, may be summarized as under:

(a) Keeping in view the judgment of Supreme Court in Guruvayoor Devaswom Managing Committee (supra), this Bench while sitting Single has got jurisdiction to interfere, decide a controversy relating to ponds, lakes and hill tops recorded in the revenue records and issue appropriate order or direction for their maintenance in public interest.

(b) Under the U.P.Z.A. & L.R. Act and the rules framed thereunder as well as keeping in view the constitutional mandate, discussed hereinabove, it is the duty of the State to preserve and protect the lakes, ponds and other water reservoirs as also the hill tops in the State of U.P. Further, in accordance with the provisions, contained in Panchayat Raj Act also, it is the duty of every Gram Sabha to preserve and protect the ponds and lakes falling within its jurisdiction. In case, any water reservoir has been extinguished or encroached, Gram Sabha may restore them from its own fund while discharging statutory duty under Section 15 of the U.P. Panchayat Raj Act. In case any lease has been granted which has been recorded as pond or lake in the revenue record, then it shall be duty of the Collector/Sub Divisional Magistrate concerned to cancel the same by taking suo moto action as discussed in the present judgment. Whether it is a local body like Nagar Nigam, Nagarpalika, Zila Panchayat, all developmental authorities like Lucknow Development Authority or the Gram Sabha, it shall be their duty to maintain water reservoir and in case, any encroachment has been done, that should be removed forthwith in the manner, discussed in the present judgment on the cost which should be borne by the local bodies and authorities keeping in view the judgment of the Apex Court in Hinch Lal Tiwari''s case (supra).

(c) States and its local bodies have got no right to destroy the water reservoir or hill top under the garb of ''sustainable development'' keeping in view the possible water crisis in near future, as discussed in the judgment. As referred hereinabove, in case in the city of Lucknow, water level goes down at the rate of 56cm per year (as noticed by the Underground Water Department of the State of U.P.), then after 50 years, the citizens will suffer acute water shortage. There shall be acute dearth of water not only for irrigation purposes but also for drinking. It appears that because of unvoiced and unplanned activities of the State since last sixty years, in future, water shall be distributed on ration card keeping in view the numbers of members of a family. Let the authorities and political persons awake and not solve the housing problem in such a manner converting the cities of State of U.P. possessing concrete buildings and houses with no sufficient water for the maintenance of livelihood.

(d) Even if it is a private water reservoir or tank, the State should also not permit the private bodies to convert such water reservoir in housing or other purposes. The private owners must maintain the water reservoirs within their own control without affecting its shape and size. State Government may, if necessary acquire private water bodies after payment of compensation under Section 212 of Z.A. & L.R. Act.

(e) In case the land has been recorded as water reservoir like pond or lake, in the revenue records under consolidation operation, then such land cannot be let out on lease to any person for any reason whatsoever. Allotment of such water reservoir on lease shall be nullity in law as discussed in the present judgment and it shall be the duty of the Collector/Gram Sabha to restore them and maintain in their original shape with all infrastructures by taking suo moto action.

(f) While proceeding with the eviction processes, in case, there is serious dispute of title with any private person, then it shall always be open to such private person to file a regular suit in view of the statutory provisions contained in Subsection (4D) of Section 122B of the Act or in view of law settled by Apex Court and this Court (supra).

(g) Keeping in view the finding recorded by the scientists and discussions made in the present judgment, it shall be necessary for the State of U.P. not only to restore old water reservoirs but also to create artificial water reservoirs, ponds and lakes and also the water harvesting should be made compulsory for every colonizerwhether private or an instrumentality of the State.

(h) So far as TikatRaiTalab is concerned, it has been brought to the notice of this Court that Special Appeal No.212 of 2007 has been filed in which an interim order has been passed by a Division Bench of this Court. Accordingly, the controversy relating to TikatRaiTalab shall be subject to the outcome of the special appeal, filed by a private person.

(i) Since on behalf of the Lucknow Development Authority, a statement was made that no construction has been made over Kathauta Lake but later on, it was found to be incorrect, Lucknow Development Authority shall restore the Kathauta Lake and its adjoining ponds and the allotment made over the portion of pond and lake shall be cancelled forthwith. The allottees may be allotted some other appropriate land. The Lucknow Development Authority and Housing Board shall change their plan, if any and shall not raise any construction over a land which has been marked in the revenue record as pond or lake. Similarly, no private colonizer in the State of U.P. shall raise any construction on the pond or lake, situated in the State of U.P. No map shall be sanctioned for planned development which includes a land which has been marked as pond or lake. In case any map or plan has already been sanctioned, then that should be cancelled and appropriately modified by the competent authorities.

(j) Keeping in view the possible acute crisis of water in the State of U.P., the developmental authorities, Government and private colonizer have got no right to construct the building on the land which has been recorded as pond or lake in the revenue records.

(k) All ponds and lakes of the local bodies, authorities or Gram Sabha, falling in the urban area, be restored forthwith where construction has been raised by the developmental authorities, colonizers or private builders. The developmental authorities and local bodies shall develop the ponds and lakes at their own cost in view of the Apex Court''s judgment, referred to in the preceding paras of this judgment. So far as the construction done in the cities prior to Hinch Lal Tiwari''s case (supra) is concerned, its feasibility shall be seen by the State Level Committee, constituted by this Court through the present judgment. However, the unauthorized encroachment done by the private persons over ponds and lakes of the urban and rural area should be removed at any cost, expeditiously without any exception.

(l) So far as the encroachment of ponds, lakes and hill tops in the rural area is concerned, it shall be removed keeping in view the order, passed by this Court at Allahabad in Writ Petition No.38910 of 2003 Iqbal Ahmad v. Deputy Director of Consolidation and Others.

(m) During the course of hearing, it was brought to the notice of this Bench that the local bodies and State colonizers as also the private colonizers are destroying ponds and lakes in the State of U.P., in spite of the fact that the State of U.P. is likely to face acute water crisis and the authorities are not discharging their statutory obligations. It should be stopped immediately.

In view of the above, the writ petition deserves to be allowed. Accordingly, the writ petition is allowed in the following manner:

(i) A writ in the nature of certiorari quashing the impugned orders dated 27.4.2006 and 7.3.2005 with consequential benefits is issued. The District Magistrate, Gonda is hereby directed to restore the pond in question as well as other ponds and lakes forthwith in the manner discussed in the present judgment.

(ii) Further a writ, order or direction is issued in the nature of mandamus commanding the State of U.P. as under:

(a) All the Gram Sabha, local bodies including developmental authorities, Nagar Panchayat, Nagar Nigam and Nagarpalika Parishad etc. are directed to restore and maintain the lakes, ponds, hill tops, falling within their respective jurisdiction to meet out the acute water crisis which the State of U.P. is likely to face in near future, keeping in view the discussion, made in the present judgment.

(b) U.P. Housing Board, Lucknow Development Authority, Principal Secretary, Housing, Principal Secretary, Local Bodies and other State authorities are directed to restore the water reservoirs and maintain them in their original form on their own cost, keeping in view the Apex Court''s judgments in Bittu Sehgal''s case (supra) and Hinch Lal Tiwari (supra) and also the observations, made hereinabove. In case, any land, meant for water reservoirs like pond or lake has been allotted and construction has been raised, then that should be cancelled/removed forthwith. Encroachment must be removed at the expenditures of the authority concerned. The allottees may be given alternative plot in lieu of original allotment.

(c) All plans and maps, which have already been sanctioned, should be amended in such a manner so that natural water reservoirs in the form of pond and lake or hill top should not be affected. No map shall be sanctioned and construction shall be permitted to be raised whether by private colonizer or the State instrumentalities, in case such action amounts to encroachment over a pond, lake or other water reservoirs.

(d) Water harvesting should be made compulsory for the State instrumentalities or private colonizers and house owners and builders.

(e) In every district, a District Level Committee should be constituted consisting of:

(1) Additional District Magistrate, Finance & Revenue or Additional District Magistrate, Administration, as nominated by the District Magistrate.

(2) A police officer not below the rank of Deputy Superintendent of Police, nominated by the superintendent of Police of the district concerned.

(3) Sub Divisional Magistrate of the area or Tehsil concerned.

(f) It shall be duty of the District Level Committee to take appropriate measure to restore ponds and lakes in its jurisdiction and submit a report to the State Level Committee.

(g) State Level Committee shall be constituted consisting for the period up to 31.12.2008 or for the modified period, provided by this Court consisting of:

(1) Hon''ble Mr. Justice Shailendra Saksena, former Judge of this Court,

(2) Director, Underground Water Department,

(3) Secretary, Board of Revenue,

(4) Mr. R.S. Pandey, a practicing Advocate on Civil and revenue side of this Court, and,

(5) An officer of the rank of Principal Secretary, nominated by Chief Secretary of the State of U.P.

Shailendra Saksena (Retd.) shall be the Chairman of the State Level Committee. The Hon''ble Judge is requested to submit the progress report at the end of every two months and if necessary, for any problem, it shall be open for the State Level Committee to approach this Court for appropriate order. The Committee shall take all appropriate steps for the restoration of ponds, lakes and hill tops in the State of U.P. All State authorities shall provide necessary assistance, as required by Committee to implement the present judgment. The State Government may allot appropriate place and assistance, as required to carry out order of this Court.

Mr. R.S. Pandey, learned counsel shall also work as amicus curiae to assist the Court during the course of monitoring and he shall be paid fees and expenses in accordance with rules.

(h) The State Leval Committee shall start functioning with immediate effect and till the State Government provides the necessary facilities, the Registrar of this Court shall make necessary arrangements so that the Committee may convene its meeting and take suitable steps for removal of encroachment from ponds and hill tops, keeping in view the observation and suitable steps to monitor the removal of encroachment from ponds, lakes and hill tops, keeping in view the observations made in the present judgment.

(i) The Chief Secretary, Government of U.P. may, issue appropriate orders or circulars for construction of District and State Level Committee, keeping in view the present judgment. In case any forum has been constituted by the State Government for the same purpose, it shall submit the progress report to the State Level Committee, constituted by this Court through the present judgment.

(j) The State shall provide all the facilities to the members of the State Level Monitoring Committee including transportation, fooding and lodging to visit spots and inspect disputed places, if necessary at the discretion of its Chairman. All State authorities District Magistrates, Sub Divisional Magistrates, Tehsildars and the competent authorities of the Board of Revenue, local bodies, developmental authorities shall provide necessary information and assistance to the State Level Committee as desired.

The case shall be listed on 5th of July, 2007.

It shall be open to the State authorities to approach State Level Committee constituted by this Court for redressal of any problem while implementing the judgment and the State Level Committee may move appropriate application, if necessary.

Subject to aforesaid direction and order, the writ petition is allowed. The Chief Secretary, Government of U.P. is directed to issue appropriate circular expeditiously, preferably within a period of three weeks from the date of receipt of a copy of this judgment. The registry shall forward the copy of this judgment to the Chief Secretary, Government of U.P., Hon''ble Mr. Justice Shailendra Saksena, former Judge of this Court and Mr. R.S. Pandey, Advocate within one week.

(Petition allowed)