State Of U.P. Thru. District Magistrate Ambedkar Nagar And Anr vs Samundra Devi Deceased Thru. Ram Surat And Ors.
- Court
- Allahabad High Court
[AFR]
Reserved on : August 20, 2026
Delivered on : October 29, 2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
SECOND APPEAL No. - 242 of 2022
State of U.P. Thru. District Magistrate Ambedkar Nagar and Anr
…..Appellant(s)
Versus
Samundra Devi Deceased Thru. Ram Surat and Ors.
…..Respondent(s)
Counsel for Appellant(s) : C.S.C.,
Counsel for Respondent(s) : Rinku Kumar Verma, Brijesh Kumar
Verma, Virendra Singh
Court No. - 20
HON'BLE PRASHANT KUMAR, J.
1. Heard Sri Anuj Kudesiya, learned Senior Advocate/Additional
Advocate General assisted by Sri Gopal Krishna Pathak, learned
Additional Chief Standing Counsel appearing for the appellant-State and
Sri Brijesh Kumar Verma along with Sri Rajdeep Chaudhary, learned
counsel appearing for the respondents and perused the records.
2. The instant Second Appeal under section 100 of the Code of Civil
Procedure, 1908, has been preferred by the appellants against the
judgment and order dated 30.07.2018 passed by the Additional District
Judge, Court No. 1, District - Ambedkar Nagar (hereinafter referred as
‘Appellate Court’) in an appeal bearing Regular Civil Appeal No. 63 of
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2015 (State of U.P. and anr. v. Smt. Samundra Devi & Others), whereby
the first appeal filed by the appellants was dismissed by upholding the
judgement and order dated 05.11.2015 passed by Civil Judge, Senior
Division, District - Ambedkar Nagar (hereinafter referred as ‘Civil
Court’) in a civil suit bearing Regular Suit No.388 of 2007 (Smt.
Samundra Devi v. State of U.P. and anr.) .
Factual Matrix :
3. A suit for permanent injunction and ejectment was filed by the
predecessor-in-interest, bearing Original Suit No. 388 of 2007, in respect
of land bearing Gata No. 334A, admeasuring one bigha and 19 biswa,
situated at Village Achhati, Pargana Bidahar, Tehsil Alapur. There was a
link road being constructed in 1987-88 over the land which belonged to
Manraj Kumari (who was the predecessor-in-interest of the respondent),
which divided the entire land into two parts. Since the link road passed
through the respondents’ land, the Sub-Divisional Magistrate, Tehsil
Alapur, Ambedkar Nagar, by order dated 22/03/1988, proposed to
acquire the land to be used by the road and in lieu thereof granted
alternative land in the abadi of Gaon Sabha Achhati. Accordingly, a
resolution was passed on October 15, 1988, for the exchange of the land.
The alternative land was allotted to the predecessor of the respondents,
wherein her name was also mutated in the revenue record on September
6, 1989. She continued to be the owner and in possession of the land as
bhumidhar.
4. Subsequently, on May 14, 1990, a registered sale deed was executed
in favor of the present respondents by the predecessor-in-interest in
respect of the exchanged land (bearing Gata No.112(minjumla),
admeasuring 9 biswa). The name of the present respondents, who were
buyer of the land, were recorded in the revenue record as bhumidhar
with transferable rights. On this land, the respondents constructed a
house containing five rooms along with a boundary wall. Thereafter the
respondents were in possession and enjoyed the said property.
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5. Thereafter, the tehsildar has expunged the name of the respondents
from the revenue record in a reference filed before him, the same was
challenged by the respondents and the order expunging the name has
been set aside. It is in the year 2007, the appellant/State started
construction of a Fire Station on the said land, which belongs to the
respondents claiming it is to be a pond land.
6. The respondents aggrieved by the illegal action of the appellants by
illegally taking over the land, which has been legally allotted to them,
was left with no other alternative, but to file a suit for permanent
injunction and ejectment (being Regular Suit No.388 of 2007) before
Civil court, Ambedkar Nagar.
7. On behalf of the respondents-plaintiffs, oral evidences were adduced
by examining PW-1 Samundra Devi and PW-2 Shri Ram Yadav, whose
examination-in-chief affidavits were filed and proved. In support of their
contentions the respondents-plaintiffs filed photocopy of the sale deed,
an extract of the Khatauni, a photocopy of the site plan (Naksha Nazri), a
photocopy of the proceedings of the Gram Sabha dated 15.10.1988, a
certified copy of the order passed on 06.07.1989, a photocopy of the
order in the revision case (Samundra Devi v. State of Uttar Pradesh), the
Khatauni pertaining to Gata No. 112, an extract of the Khatauni of
Village Achhati, Tehsil Alapur, the six-year Khatauni, the original sale
deed, the original copy of the Right to Information (RTI) document
obtained from the office of the District Magistrate, Ambedkar Nagar, a
copy of the Gazette publication dated 26.01.2011 published in
the Hindustan newspaper, a copy of the Gazette publication appearing in
the November 2011 edition of Hindustan, the original order dated
21.07.2009 passed in Revision No. 953 by the Court of the Additional
Commissioner (Administration), Faizabad Division, Faizabad, and other
relevant documents as a documentary evidences.
8. Defendants (appellants herein) have filed a written statements before
the Civil court and denied the averments made in the plaint filed by the
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plaintiffs (respondents herein). In their written statement, they contended
that Gata No. 112, measuring 7 Bighas 15 Biswas, situated at Village
Achhati, Tehsil Alapur, District Ambedkar Nagar, is recorded in the
revenue records as pond land. They alleged that the plaintiff and certain
other persons had obtained fraudulent entries in respect of the said land,
which were subsequently canceled pursuant to an inquiry conducted on
the directions of the District Magistrate. Consequently, the land was
ordered to continue to be recorded as pond land. The respondents further
contended that the plaintiff never had any right, title or possession over
the disputed land and that the land belongs to the State and is under the
management of Gram Panchayat Achhati. The suit was also challenged
for non-joinder of the Gram Panchayat as a necessary party, failure to
challenge the order of the Deputy Director of Consolidation before the
competent forum, and being barred by the provisions of the applicable
revenue law. It was further pleaded that the statutory notice under
Section 80(1) C.P.C. had not been served before institution of the suit
and that the suit for permanent injunction was not maintainable in the
absence of the plaintiff's title and possession. Accordingly, the
respondents prayed for dismissal of the suit with costs.
9. On behalf of the defendants, DW-1 Jitendra Kumar Singh was
examined, and his examination-in-chief affidavit was also filed. In
support of their contentions, appellants-defendents, in their documentary
evidences, filed certified copies of the village map of Mouza Achhati for
Fasli Year 1415, the Khasra and extracts of the Khatauni, the original
Khatauni of Village Achhati for Fasli Years 1415–1420, a photocopy of
the Government Order dated 30.06.2004 and other relevant documents
were filed.
10. On the basis of the pleadings of both parties, the Civil Court framed
the following issues :
“1. ?
क्यावादिनीविवादितभूमि कीमालिकवकाबिजहै
2. ?
क्यावादअल्पमूल्यांकितहैऔरप्रदत्तन्यायशुल्कअपर्याप्तहै
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3. 331 ?
क्यावादधारा जमींदारीविनाशअधिनियमसेबाधितहै
4. ?”
क्यावादिनीकिसीअन्यउपशमकोपानेकीअधिकारिणीहै
11. After hearing the learned counsel for the parties and upon perusal of
the pleadings, documentary evidence, and oral evidence adduced by the
parties, the Civil Court came to the conclusion that the plaintiff is the
owner and in possession of the disputed property. The Court further
decided the remaining issues in favour of the plaintiff and accordingly
decreed the suit with costs of Rs. 3,000/- vide its judgement and decree
dated 05.11.2015.
12. Being aggrieved by the judgment and decree passed by the Civil
Court, the appellants assailed the same by filing the first appeal (being
Civil Appeal No.63 of 2015) before the Appellate Court on the grounds
that the Civil Court failed to frame proper issues, and while deciding the
suit, the Civil Court did not consider Gram Panchayat Achhati as a
necessary party, and overlooked the provisions of Section 161 of the
Zamindari Abolition and Land Reforms Act relating to Gaon Sabha land.
13. The appellants further contended that Gata No. 112 was pond land
and, therefore, no bhumidhari rights could accrue over it under Section
132-A of the Zamindari Abolition and Land Reforms Act, nor could it be
transferred or exchanged. They further argued that the exchange order
passed under Section 161 of the Act was without jurisdiction. It was also
submitted that part of the land had been allotted to the Fire Department
and that the plaintiff and her witnesses had admitted the existence of
water in the disputed pond. They further contended that the principle of
estoppel was wrongly applied to an act prohibited by law, and the
relevant judgments of the Hon’ble High Court and the Hon’ble Supreme
Court were not properly examined. It was therefore contended that the
impugned judgment passed by the Civil Court is arbitrary and liable to
be set aside.
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14. The respondents-plaintiffs contended that Gata No. 112 was recorded
in the name of Manraj Kunwari, from whom she had lawfully purchased
the property for consideration and thereafter raised construction and
remained in possession as owner. She relied upon the documentary
evidence on record and submitted that the State Government had failed
in the earlier proceedings up to the Commissioner, Faizabad, and had not
challenged the same before the competent forum. She further contended
that the proceedings under Section 161 were lawful and there is no error
of law or fact in the impugned judgment. She therefore prayed for
dismissal of the appeal.
15. On the basis of pleadings the Appellate Court framed the following
issues :
“ 1.
क्याअपीलमेंउल्लि खितआधारोंपरविवादितसम्पत्तिराजस्वअभिलेखोंमें
,
तालाबकेरूपमेंप्रविष्टिहोनेकेकारणप्रतिवादीकेअयालय अम्बेडकरयामित्वकी
?
भूमि है
2.
क्याअवरन्यायालयकेद्वारासाक्ष्यकेपरिशीलनमेंकोईत्रुटियाअनियमितता
?
कीगयीहै
3.
क्याअपीलमेंउल्लि खितआधारोंपरअवरन्यायालयद्वारापारितनिर्णयनिरस्त
? ”
होनेयोग्यहै
16. After hearing the learned counsel for the parties and upon perusal of
the pleadings, documentary evidence, and oral evidence adduced by the
parties, the Appellate Court came to the conclusion that the order
deleting the plaintiff-respondent Samundra Devi’s name from the
disputed property had been set aside by the Additional Commissioner,
Faizabad Division, and her name was consequently restored in the
revenue records. Since the said order was not challenged by the
appellants before any competent court, it had attained finality. The
Appellate Court further found no material irregularity or illegality in the
judgment and decree passed by the Civil Court and, accordingly, held
that the same was not liable to be set aside. Consequently, the Appeal
filed by the appellants has been dismissed vide its judgement and order
dated July 30, 2018.
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17. Being aggrieved, the instant second appeal has been preferred by the
appellants under Section 100 of the Civil Procedure Code, 1908,
challenging the judgement and order passed by the Appellate Court.
18. While admitting the present Second Appeal, the following substantial
questions of law were framed for adjudication :-
"1. Whether the appellants can evict the respondents, who were
allotted the land by the State in lieu of the acquired land, by
expunging the name of the respondents from the revenue record
instead of filing a suit for eviction or cancellation of the said
allottment?
2. Whether a pond land can be allotted for construction of Fire
Station as in lieu of this land another land, which was a banjar
land has been allotted and marked for construction of a pond?
3. Whether the respondents can be left landless, especially when
their original land was acquired without payment of any
compensation and the land allotted in lieu of such acquisition has
also been taken away?
4. Whether a pond land could have been allotted to the
respondents by the appellant and if not, what action has been
taken against the officers responsible for such allotment?
5. Whether the State can reclaim the land granted in lieu of the
acquired land on the ground that the said land is pond land?
6. Whether the respondent’s action is barred by the doctrine of
estoppel?
7. Whether the acquisition and allotment of the land for
construction of Fire Station on an alleged pond land is barred by
the ratio laid down by Hon'ble Apex Court in the matter of Hindlal
Tiwari v. Kamla Devi reported in 2001 (6) SCC 496?
8. Whether the suit is barred by Section 331 of the U.P. Zamindari
Abolition and Land Reforms Act?
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9. Whether land acquired under Section 332 of the U.P. Zamindari
Abolition and Land Reforms Act can be exchanged under Section
161 of the said Act?”
Submissions of learned Counsel for the appellants :
19. Learned counsel for the appellants contended that the disputed land
was recorded as pond land belonging to the State and managed by the
Gram Panchayat. He further submitted that the respondents had no valid
right, title, or possession over the disputed land and suit was not
maintainable. The land was wrongly been allotted to their predecessor-
in-interest in exchange for the land acquired for construction of a link
road, as the same was a pond land which cannot be allotted to a private
individual. He further submitted that once it was found that the allotment
was incorrect their name was expunged from the revenue Records.
20. Learned counsel for the appellants further contended that the pond
land is a public utility land and may be allotted for any other public
utility work. He further placed reliance upon Section 77(2) of the
Revenue Code and submitted that the State can allot public utility land
except in exceptional cases for any other public utility and for that the
land equivalent to that may be allotted and made complete for that public
utility purpose. To buttress his argument, he placed reliance on a
judgment passed by the Hon'ble Supreme Court in the matter of Jagpal
Singh vs. State of Punjab reported in (2011) 11 SCC 396.
21. Learned counsel for the appellants further contended that the
disputed land was recorded as pond land belonging to the State and
managed by the Gram Panchayat, and the respondents had no lawful
right, title, or interest therein. He further submitted that the revenue
entries in favour of the respondents had been canceled pursuant to an
inquiry.
22. He further contended that the pond land cannot be allotted to any
private person except in exceptional cases. Since no bhumidhari right
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can accrue in public utility land so neither it could be allotted nor any
exchange could be made. The allotment was made due to some
inadvertence, which was later corrected.
23. Learned counsel for the appellants further submitted that the State is
the owner of all pond and other public utility land and the Gaon Sabha
being the state local body, is the caretaker of that land. He submitted that
no Bhumidhari rights would accrue in the land which is of public utility
except for other public utility. He further submitted that neither any
allotment nor any exchange could be done for that land which falls under
public utility. Hence no question arises of reclaiming the land.
24. He further contended that the disputed land was recorded as pond
land and the respondents had no lawful right, title, or interest therein. It
was further argued that the revenue entries in favour of the respondents
had been fraudulently obtained and subsequently expunged following an
inquiry. He further argued that the appellants could not defeat their
lawful rights by merely altering the revenue entries.
25. Learned counsel for the appellants further contended that the
allotment of land for a fire station is not barred in view of the Hinch Lal
Tiwari v. Kamala Devi, reported in 2001 (6) SCC 496, which is
considered in Jagpal Singh vs. State of Punjab reported in 2011 (11)
SCC 396 , in which it is considered that the land of Public Utility like
pond may be allotted in exceptional cases for other public utility, which
is also supported by Section 77(2) of the Revenue Code. He further
submitted that the land of a pond can not be allotted to private persons,
which is made clear in the Hinch Lal Tiwari (supra).
26. Learned counsel for the appellants further contended that the name
of Smt. Samundra Devi, the predecessor in interest of the respondents,
was deleted by DDC (The Competent Court) on 21.9.2007 in reference
no.530 prior to filing of the civil suit which is filed on 12.12.2007, hence
the question of title was involved in the matter as specifically pleaded in
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the written statement filed by the appellants/ defendants. So the suit is
barred under Section 331 U.P.Z.A. and L.R. Act. He further submitted
that it is provided in the statute that the declarations of right in the
agricultural land is within the jurisdiction of Revenue Court as per
Section 331, Schedule II and Section 229-B of U.P.Z.A. and L.R. Act.
He further submitted that the court below had wrongly relied upon the
order dated 21.09.2007 passed by Add. Commissioner, Faizabad
Division, in revision no. 953 under section 219 of the Uttar Pradesh
Land Revenue Act. If the suit is an agricultural land, and if the question
of title is involved, the jurisdiction is that of the Revenue court and not
of civil court. Hence, the impugned orders are perverse.
27. Learned counsel for the appellants lastly contended that Section 132
U.P.Z.A. and L.R. Act is very clear that no Bhumidhari rights will accrue
in the land which falls under this section, so no question arises of
exchange or allotment.
Submissions of learned Counsel for the Respondents :
28. Learned counsel for the respondent vociferously opposed the instant
second appeal. At this stage he submitted that none of the questions
framed in the instant second appeal constitutes a substantial question of
law. The questions which merely seek reappreciation of evidence or
reconsideration of the concurrent findings of fact recorded by the courts
below do not give rise to any substantial question of law within the
meaning of Section 100 CPC.
29. He further submitted that the scope of a second appeal under Section
100 CPC is confined to the substantial question(s) of law formulated by
this Hon’ble Court. The High Court cannot undertake a fresh
appreciation of evidence or interfere with concurrent findings of fact
merely because another view of the evidence is possible.
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30. He further submitted that a second appeal cannot be converted into a
third round of appreciation or reappreciation of evidence merely because
another view of the evidence is possible. The jurisdiction under Section
100 CPC is confined to cases involving a substantial question of law.
The High Court must therefore first identify and formulate such
substantial question of law before interfering with the judgment of the
courts below.
31. He further submitted that it is a settled principle of law that in
exercise of jurisdiction under Section 100 CPC, the High Court does not
ordinarily interfere with concurrent findings of fact recorded by the
courts below. Where the Civil Court and the First Appellate Court have,
upon appreciation of the evidence on record, recorded concurrent
findings of fact, such findings ordinarily attain finality in second appeal.
32. He further submitted that interference is permissible only where the
concurrent findings are shown to be perverse, based on no evidence,
founded upon inadmissible evidence, arrived at by ignoring material
evidence, or based upon a misapplication of the law, resulting in a
substantial question of law. The Supreme Court has repeatedly reiterated
this principle in Hero Vinoth (minor) v. Seshammal, reported in (2006)
5 SCC 545, C. Doddanarayana Reddy v. C. Jayarama Reddy, reported
in (2020) 4 SCC 659 , and State of Rajasthan v. Shiv Dayal, reported in
(2019) 8 SCC 637. Therefore, unless the appellant demonstrates a
legally recognised perversity or another circumstance giving rise to a
substantial question of law, mere re-appreciation of evidence or the
possibility of another factual view cannot furnish a ground for
interference under Section 100 CPC.
Analysis
33. Heard the learned counsel for the parties and perused the record and
the written submissions.
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34. Upon considering the questions formulated in the present second
appeal and the submissions advanced by learned counsel for the parties,
this Court finds that questions Nos. 2, 7, 8 and 9 raise substantial
questions of law requiring detailed examination. These questions
concern the legal rights of the parties, the interpretation and application
of the relevant statutory provisions, and the legality of the findings
recorded by the courts below. The determination of these questions are
essential for the proper adjudication of the present appeal. Accordingly,
this Court considers it appropriate to examine the aforesaid questions in
the light of the pleadings, documentary and oral evidence available on
record, the findings of the courts below, and the applicable principles of
law. The remaining questions shall be considered, if necessary, in
accordance with the outcome of these substantial questions of law.
35. So far as Question no. 1 is concerned learned counsel for the
appellants contended that the disputed land was recorded as pond land
belonging to the State and managed by the Gram Panchayat. It was
argued that the respondents had obtained fraudulent entries in the
revenue records, which were subsequently canceled following an
inquiry. The appellants further submitted that the respondents had no
valid right, title, or possession over the disputed land and suit was not
maintainable. Per contra learned counsel for the respondents submitted
that the disputed land was lawfully allotted to their predecessor-in-
interest in exchange for the land acquired for construction of a link road.
The allotment was approved by a resolution dated 15.10.1988, and the
predecessor’s name was duly mutated in the revenue records.
Subsequently, the respondents purchased the land through a registered
sale deed dated 14.05.1990 and were recorded as bhumidhars with
transferable rights. It was argued that the appellants could not dispossess
the respondents merely by expunging their names from the revenue
records without adopting the procedure prescribed by law for
cancellation of the allotment or eviction.
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36. Upon considering the arguments advanced by learned counsel for the
parties and the evidence available on record, this Court is of the
considered opinion that the appellants cannot evict the respondents
merely by expunging their names from the revenue records. The
disputed land was allotted to the respondents’ predecessor-in-interest in
exchange for the land utilized for the construction of a link road, and the
respondents subsequently acquired the same through a registered sale
deed dated 14.05.1990. The respondents’ names were also recorded in
the revenue records as bhumidhars with transferable rights. Mere
correction or expunction of revenue entries cannot, by itself, extinguish
the respondents’ established legal rights or authorize their dispossession.
Therefore, the appellants could not lawfully dispossess the respondents
merely by deleting their names from the revenue records. Accordingly,
the issue is answered in favour of the respondents and against the
appellants.
37. With regard to Question No. 3, Learned counsel for the appellants
contended that the disputed land was recorded as pond land belonging to
the State and managed by the Gram Panchayat, and that the respondents
had no lawful right, title, or interest therein. It was further submitted that
the revenue entries in favour of the respondents had been cancelled
pursuant to an inquiry. Conversely, learned counsel for the respondents
argued that their predecessor-in-interest’s original land had been utilized
for the construction of a link road without payment of compensation, and
alternative land was allotted in exchange thereof by a resolution dated
15.10.1988. Subsequently, the respondents purchased the allotted land
through a registered sale deed dated 14.05.1990. Upon considering the
rival submissions and the evidence on record, this Court finds that the
respondents cannot be deprived of both their original land and the
alternative land merely by expunging their names from the revenue
records. Any cancellation of the allotment or dispossession must be
undertaken in accordance with the procedure established by law. In view
of the foregoing discussion, this Court holds that the respondents cannot
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be deprived of their lawful rights over the disputed property.
Accordingly, the issue is answered in favour of the respondents and
against the appellants.
38. With regard to Question No. 6, the appellants contended that the
disputed land was recorded as pond land and that the respondents had no
lawful right, title, or interest therein. It was further argued that the
revenue entries in favour of the respondents had been fraudulently
obtained and subsequently expunged following an inquiry. Conversely,
learned counsel for the respondents submitted that the disputed land was
lawfully allotted to their predecessor-in-interest in exchange for the land
utilized for road construction and was subsequently purchased by them
through a registered sale deed dated 14.05.1990. It was argued that the
appellants could not defeat their lawful rights by merely altering the
revenue entries. Upon consideration of the arguments and evidence on
record, this Court finds that the appellants have failed to establish the
essential ingredients of estoppel. Accordingly, the issue is decided
against the appellants and in favour of the respondents.
39. So far as Question Nos. 2, 7 and 9 are concerned, all are
interconnected and, therefore, are being answered together. Learned
counsel for the appellant submitted that the State, being the recorded
owner of the land in question, has all the rights of an absolute proprietor
and, therefore, is competent to deal with the land in any manner,
including by exchanging the pond land with another parcel of land . It
was further contended that once an alternative piece of land is made
available in lieu of the pond, there can be no legal impediment in
permitting such exchange, particularly when the land vests in the State.
40. The submission, however, proceeds on the assumption that an
existing pond is merely an ordinary parcel of land belonging to the State.
Such an assumption is legally untenable. The character of the land as an
existing pond is of decisive significance. A pond is not merely land with
a particular revenue entry; it is a natural water body and a community
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resource , having environmental, ecological and public utility
dimensions. The State cannot claim an unfettered proprietary dominion
over such a resource merely because the land stands recorded in its
name.
41. The State, while dealing with natural resources, acts not as an
absolute private proprietor but as a trustee and custodian of resources
held for the benefit of the community. The power of the State to deal
with land is consequently subject to the nature and character of the
resource and to the constitutional and public-law obligations governing
its preservation. Ownership, even where vested in the State, cannot by
itself confer an unrestricted right to destroy, alienate, divert or exchange
a natural water body.
42. The mere provision of another parcel of land in exchange cannot, by
itself, extinguish the public and ecological character of an existing pond.
A natural water body is not rendered legally interchangeable with an
ordinary parcel of land merely because the State chooses to offer or
receive another piece of land in exchange. The question, therefore, is not
simply whether the State owns the land, but whether, consistently with
its fiduciary obligation and the applicable environmental and public-law
principles, it can alter the character of an existing pond by treating it as
an ordinary proprietary asset.
43. The Supreme Court in Hinch Lal Tiwari (supra), expressly held that
the material resources of the community, including forests, tanks and
ponds, are “nature’s bounty” and maintain a delicate ecological balance.
The Court held that such resources require protection for a proper and
healthy environment and that the authorities, instead of permitting a
pond to fall into disuse, ought to develop and restore it.
44. The principle laid down in Hinch Lal Tiwari (supra) is particularly
significant where the authorities seek to rely upon the degradation,
drying up or altered physical condition of a pond. The State cannot take
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advantage of the very degradation of the water body which it is under a
duty to protect. The Supreme Court directed restoration of the pond and
required the State authorities to develop and maintain it as a recreational
spot for the villagers.
45. The Public Trust Doctrine imposes a special obligation upon the
State in respect of natural resources meant for public use and enjoyment.
The State does not hold such resources merely as an unrestricted private
proprietor; its powers are subject to its obligation to protect the resource
for the public.
46. In M.C. Mehta v. Kamal Nath, reported in (1997) 1 SCC 388 , the
Supreme Court recognised the Public Trust Doctrine and the obligation
of the State in relation to natural resources intended for public use and
enjoyment. The doctrine proceeds on the principle that certain resources
are held for the benefit of the public and cannot be dealt with solely for
the proprietary convenience of the State.
47. The same constitutional principle has subsequently been applied in
the Supreme Court’s environmental jurisprudence, including cases
concerning forests, water bodies and other natural resources. Thus, the
State’s authority over a natural resource is necessarily subject to the duty
to protect the resource and the public interest attached to it.
48. A pond is not merely the water standing upon a particular piece of
land. It performs important ecological functions, including groundwater
recharge, preservation of water availability, support of aquatic life,
maintenance of ecological balance and protection of the local
environment. Its value therefore cannot be measured merely by the
market value or area of the land upon which the pond exists.
49. An alternative pond does not, by itself, justify destruction of an
existing pond. The proposition assumes even greater significance in the
present case because the justification offered by the authorities is that the
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existing pond may be utilised for another public purpose and an
alternative parcel of land may be provided for creating another pond.
50. The Supreme Court in Jitendra Singh v. Ministry of Environment &
Others, reported in (2020) 20 SCC 581 , has considered a substantially
relevant situation concerning the allotment of local ponds, where the
Greater Noida Industrial Development Authority sought to justify the
action, inter alia, on the ground that it was developing bigger alternative
water bodies. The Supreme Court allowed the appeal and dealt with the
protection of village ponds as common water bodies.
51. Therefore, the mere offer of an alternative parcel of land or the
proposal to create another water body cannot, by itself, be treated as
conferring an unrestricted power upon the State to destroy or divert an
existing community pond. The existing water body has its own
ecological and community value, and its substitution cannot be justified
merely by a comparison of the area of the two parcels.
52. This court in the matter of Shamli Devi vs. State of U.P., reported in
2008 (4) ADJ 578 , has held that even if some portion or the whole pond
becomes dry, it does not cease to be a pond and even Gaon Sabha cannot
allot the pond for any other purposes except fisheries purposes to any
one vide Hinch Lal Tiwari (supra).
53. Similarly, in Ramadhar and Ors. vs. Collector and ors, reported in
2011 (3) ADJ 881 , this Court while taking note of Hinch Lal Tiwari
(supra), has held that if some plot of land was pond at the time of
Zamindari abolition in U.P. then it continues to be pond and the fact that
it has become plain land or has been converted into plain land does not
rob it of its character of being pond and it cannot be allotted to any one
for agricultural or residential/commercial purpose and the State
authorities must convert the same into the shape of a pond.
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54. It is well settled that the State is the trustee of all natural resources
which, by nature are made for public use and enjoyment. The State as a
trustee is under the legal duty to protect the natural resources. The State,
while exercising control over a pond, acts subject to its fiduciary/public-
trust obligation to protect the natural resource and the rights of the
community associated with it.
55. In Support India Welfare Society v. State of U.P. & Ors., PIL No.
1474 of 2019 , reported in 2019 SCC OnLine All 5874 decided on
16.09.2019, the Division Bench of the Allahabad High Court dealt
specifically with the protection and restoration of ponds/water bodies
and held as under-
“12. In State of Orissa v. Government of India, (2009) 5 SCC 492,
considering the importance of water, it has been observed that
“the right to get water” is a part of right to life guaranteed by
Article 21 of the Constitution.
13. In Meghwal Samaj Shiksha Samiti v. Lakh Singh, (2011) 11
SCC 800, a village pond land was allotted to an educational
institute. The High Court set aside the allotment order and held
that pond land cannot be allotted for any other purpose. The
matter was carried to the Supreme Court. The Court, following the
decision of Hinch Lal Tiwari (supra), rejected the plea that land
was allotted for other public purpose, to build a Hostel for
students of backward class.
14. Jagpal Singh and Ors. vs. State of Punjab and Ors, AIR 2011
SC 1123, the Supreme Court has taken a judicial notice that since
independence, in large part of the country, unscrupulous persons
using muscle powers, money power and political influence, they
have systematically encroached on the public utility lands. The
Court has also observed that this has been done with the active
connivance with the State - authorities and local power vested
interests and Gundas. The Court, following its earlier judgement
in Hinch Lal Tiwari (supra), which has also been followed by the
Madras High Court in L. Krishnan v. State of Tamil Nadu, 2005
(4) CTC 1 (Mad), has further observed that most of the ponds in
the country have been filled with earth and their original
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character has been destroyed. The relevant part of the judgement
reads as under:
“16. The present is a case of land recorded as a village
pond. This Court in Hinch Lal Tiwari v. Kamala Devi, AIR
2001 SC 3215 (followed by the Madras High Court in L.
Krishnan v. State of Tamil Nadu, 2005(4) 9 CTC 1
(Madras) held that land recorded as a pond must not be
allowed to be allotted to anybody for construction of a
house or any allied purpose. The Court ordered the
respondents to vacate the land they had illegally occupied,
after taking away the material of the house. We pass a
similar order in this case.
18. Over the last few decades, however, most of these ponds
in our country have been filled with earth and built upon by
greedy people, thus destroying their original character. This
has contributed to the water shortages in the country.
20. In Uttar Pradesh the U.P. Consolidation of Holdings
Act, 1954 was widely misused to usurp Gram Sabha lands
either with connivance of the Consolidation Authorities, or
by forging orders purported to have been passed by
Consolidation Officers in the long past so that they may not
be compared with the original revenue record showing the
land as Gram Sabha land, as these revenue records had
been weeded out. Similar may have been the practice in
other States. The time has now come to review all these
orders by which the common village land has been grabbed
by such fraudulent practices.
21. For the reasons given above there is no merit in this
appeal and it is dismissed.”
(emphasis added)
56. In the matter of Jagpal Singh v. State of Punjab, reported in (2011)
11 SCC 396, the Hon’ble Supreme Court has issued directions to all the
State Governments in the country for the eviction of the
illegal/unauthorized occupants of the Gram Sabha's land. The directions
issued by the Supreme Court read as under :
“23. Before parting with this case we give directions to all the
State Governments in the country that they should prepare
schemes for eviction of illegal/unauthorised occupants of the
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Gram Sabha/Gram Panchayat/poramboke/shamlat land and these
must be restored to the Gram Sabha/Gram Panchayat for the
common use of villagers of the village. For this purpose the Chief
Secretaries of all State Governments/Union Territories in India
are directed to do the needful, taking the help of other senior
officers of the Governments. The said scheme should provide for
the speedy eviction of such illegal occupant, after giving him a
show-cause notice and a brief hearing. Long duration of such
illegal occupation or huge expenditure in making constructions
thereon or political connections must not be treated as a
justification for condoning this illegal act or for regularising the
illegal possession. Regularisation should only be permitted in
exceptional cases e.g. where lease has been granted under some
government notification to landless labourers or members of the
Scheduled Castes/Scheduled Tribes, or where there is already a
school, dispensary or other public utility on the land.”
(emphasis added)
57. This Court also, in a large number of cases, has considered the
matter relating to ponds. In Ram Kumar and Anr. v. Zila
Adhikari/District Deputy Director of Consolidation, Muzaffarbagar
and Anr., reported in 2002 (2) AWC 1577 All, this Court has held as
under:
“22. However, while allotting the land of Gaon Sabha, it has to be
kept in mind that the land of Gaon Sabha is basically for public
purpose, public in general and the society has interest in the
public land. Public land should not be allotted only to serve
individual interest, protection of ponds, tanks, mountains have
been held to be necessary for environment protection and
pollution control. Thus, the consolidation authorities while
allotting the Gaon Sabha land should normally desist from
allotting ponds, tanks, mountains, land in nature of forest.”
(emphasis added)
58. In the matter of Shardadeen v. State of U.P. and ors, reported in
(2005) 1 AWC 919 All, this Court has held as under:
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“8. Ponds are lifelines of villages. One of the reasons of alarming
decrease in water level of the underground water particularly
during recent years is drying up of the ponds. The ponds have
become dry either due to disuse or by active efforts of interested
persons by filling the same with earth. There are some authorities
of this Court which have held that no person can mature his right
through adverse possession over Gaon Sabha land as under
U.P.Z.A. & L.R. Act and the Rules there is no limitation
prescribed for filing suit by Gaon Sabha for ejectment of
trespasser. In view of this if a person is in unauthorized
occupation of a plot entered in revenue record as pond or any part
thereof, he cannot mature his title by prescription however long
his possession may be. In view of the aforesaid Hinch Lal Tewary
authority of Supreme Court plot entered as pond in the revenue
records even if it has ceased to be a pond or any portion thereof
cannot be allotted to any person. No authority can pass order
permitting or recording change of user of pond. In view of this
even if a plot which was entered as pond after Zamindari
Abolition and vested in State/Gaon Sabha or any portion thereof
has been allotted to any person then the said allotment is void and
liable to be ignored. There is therefore, no legal bar in cancelling
the entry in revenue record of such plot or any part thereof in
favour of a person after hearing him.
9. It is expected that the authorities particularly Collectors and
Deputy Collectors will initiate special drive to get such plots
completely vacated which were entered as ponds belonging to
State/Gaon Sabha just after Zamindari Abolition and restore the
same to their original position. Let a copy of this order be given to
Shri S.P. Mishra, learned standing counsel for communication to
authorities concerned.”
(emphasis added)
59. In Iqbal Ahmad and others v. Deputy Director of Consolidation,
Deoria and others, reported in (2005) SCC OnLine All 2257 , this Court
while considering the directions of the Hon’ble Supreme Court in Hinch
Lal Tiwari (supra) to maintain Ponds, Water Channels, Pokhras, Garhi
(land covered by water) etc. recorded in the revenue records on the date
of vesting as covered by section 132 of the U.P.Z.A. and L.R. Act, has
directed to comply the same forthwith for the purpose of restoring and
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maintaining the land covered by water in the interest of public in order to
maintain ecological balance end protecting environment. This court also
pointed out the fact that for the purpose of maintaining ecological
balance and protecting environment some special measures needs to be
taken on the grass route level so that directions of the Supreme Court in
the matter of Hinch Lal Tiwari (supra) be complied with. Considering
the importance, this court directed the State Government to make a
thorough investigation of each village of each District throughout State
of Uttar Pradesh in respect of Forests, Tanks, Ponds and Garhi, Water
Channel and Riverbed etc. on the basis of the revenue records of the date
of vesting, i.e., 1st July, 1952 by constituting a Special Investigation
Team consisting of revenue authorities and other concerned officials and
Environmentalists and take appropriate steps for the compliance of the
directions of Hon’ble Supreme Court in the matter of Hinch Lal
Tiwari (supra).
60. In the matter of Ram Naumee v. State of U.P. and oths., reported in
(2011) 5 All LJ 721, this Court held thus:
“18. It is apt to consider the judgment of the Apex Court in Jagpal
Singh v. State of Punjab, JT (2011) 11 SCC 396 : AIR 2011 SC
1123. This was a case with respect of a Village Pond. In that
connection, the Apex Court has made certain observations which
are relevant for the present purposes. The Apex Court has
deprecated the action of the State Authorities either in allotting
the public utility land in favour of a person or in permitting an
encroacher to occupy such public utility land. It has relied upon
its earlier decision M.I. Builders (P) Ltd. v. Radhey Shyam Sahu,
JT 1999 (5) SC 42; where the Supreme Court ordered restoration
of a park after demolition of a shopping complex constructed at
the cost of over Rs. 100 crores. It has been observed that the
principle laid down in the said decision of M.I. Builders (P) Ltd. v.
Radhey Shyam Sahu, JT 1999 (5) SC 42: will apply with even
greater force in cases of encroachment of village common land. In
para 15 of the report, the settlement of such Gaon Sabha land to
private persons and commercial enterprises on payment of some
money has not been approved and it has been provided that even if
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there is general order in favour of such settlement, the same
should be ignored.”
(emphasis added)
61. The principle emerging from the aforesaid line of authority is that the
subsequent drying up, degradation, encroachment or alteration of the
physical condition of a pond does not confer upon the authorities a
licence to treat the land as ordinary disposable property. Rather, the
obligation is to protect and, where necessary, restore the water body.
62. In the present case, the State cannot justify utilisation of the existing
pond merely by asserting that another parcel of State/Gaon Sabha land
will be provided and a new pond will be created there. The existing pond
is itself a community natural resource. Its ecological functions, historical
existence and public utility cannot be reduced to a mere calculation of
acreage.
63. The State cannot first destroy or divert an existing natural resource
and then contend that the public interest has been protected because an
alternative parcel has subsequently been earmarked. The question is not
merely whether another piece of land can be converted into a pond; the
question is whether the State possesses lawful authority to destroy or
divert the existing community water body in the first place.
64. Accordingly, an existing pond is not merely a parcel of State-owned
land. It is a natural and community resource and an ecological bounty.
The State holds such a resource subject to a public-trust obligation for
the benefit of the present and future generations. The State therefore
cannot treat the pond as its ordinary proprietary asset and substitute it
merely by offering another parcel of land. Therefore, construction of
Fire station on a pond land and its exchange under section 161 UPZA &
LR Act, 1950 as well is barred by the ratio laid down by the Hon’ble
Supreme Court in the matter of Hinch Lal Tiwari (supra). The answer
to Question nos. 2, 7 and 9 is, therefore, against the appellant.
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65. So far as Question no. 8 is concerned, recently, this High Court in
Second Appeal No. 1035 of 1996 Decided on 21.08.2024 Mangoo
Singh and Others v. Ram Autar , reported in (2024) 5 All Lj 786, has
considered the law relating to the applicability of Section 331 of the U.P.
Zamindari Abolition and Land Reforms Act, 1950. While examining the
maintainability of the suit, the Court considered, inter alia, the principles
laid down in Ram Awalamb v. Jata Shanker, 1968 AWR 731; Smt.
Bismillah v. Janeshwar Prasad, AIR 1990 SC 540; Church of North
India v. Lavajibhai Ratanjibhai, (2005) 10 SCC 760; Narendra Kumar
Mittal and Others v. M/s Nupur Housing Development Pvt. Ltd. and
Another, (2019) 144 RD 785, Shri Ram and Another v. Ist Additional
District Judge and Others, (2001) 3 SCC 24 and Kamla Prasad and
Others v. Krishna Kant Pathak and Others, (2007) 4 SCC 213. After
considering the aforesaid authorities, the Court held that the suit in
question was maintainable and was not barred by Section 331 of the U.P.
Zamindari Abolition and Land Reforms Act, 1950. In the light of the law
laid down in Mangoo case (supra) the suit filed by respondent was
maintainable before the civil court. Question No. 8 is, accordingly,
answered against the appellant and in favour of the respondents.
66. The remaining questions need not be examined separately, as they do
not require further adjudication in view of the findings recorded above.
67. According present second appeal being sans merit, stands dismissed.
(Prashant Kumar,J.)
October 29, 2026
Saurabh Yadav/-
Digitally signed by :-
SAURABH YADAV
High Court of Judicature at Allahabad,
Lucknow Bench