- (1.) This is one more case before this Court wherein it is contended that the ponds or water logged lands belonging to Gaon Sabha are being encroached upon and action is not being taken by the Gaon Sabha or the District Collector where complaints are filed. The issue of village ponds vested in Gaon Sabha and duty to free them from encroachment has been laid to rest by the Hon'ble Supreme Court in the case of Hinch Lal Tiwari v/s. Kamla Devi and Ors. : 2001(6) SCC 496. That judgment came up for consideration before learned Division Bench of this Court in the case of Ravindr Nath Pandey v/s. State of U.P.& others , 2010(1)ADJ 470 .By that judgment, the Court took notice of various petitions being filed under the guise of P.I.L. and at the same time observed that the State authorities while protecting public property are not to discard claims outright on sheer presumptions without attempting to find out the truth. Sec. 122 -B of U.P.Z.A. and L.R. Act is the provision by which a party has a remedy to remove encroachments or illegal occupants or unauthorized occupants from public land including ponds. The power is conferred on the Assistant Collector concerned.
(2.) The attention of the Court is also invited to the judgment of another Division Bench in the case of Adnan Ahmad v/s. Sanaullah and others, [2010(1)ADJ 448 wherein the learned Division Bench observed that either the Petitioner can persuade Gaon Sabha, or apply to competent authority under Sec. 122 -B for taking appropriate action and thereafter the competent authority to follow rules as prescribed under that Sec. and take action.
(3.) Sec. 122 -B of the U.P.Z.A.&L.R. Act reads as under: 122 -B. Powers of the Land Management Committee and the Collector: (1) Where any property vested under the provisions of this Act in a Gaon Sabha or a local authority is damaged or misappropriated or where any Gaon Sabha or local authority is entitled to take or retain possession of any land under the provisions of this Act and such land is occupied otherwise than in accordance with the provisions of this Act, the Land Management Committee or local authority, as the case may be, shall inform the Assistant Collector concerned in the manner prescribed. (2)Where from the information received under Sub -section(1) or otherwise , the Assistant Collector is satisfied that any property referred to in Sub -section(1) has been damaged or misappropriated or any person is in occupation of any land, referred to in that Sub -section, in contravention of the provisions of this Act, he shall issue notice to the person concerned to show cause why compensation for damage, misappropriation or wrongful occupation as mentioned in such notice be not recovered from him or, as the case may be, why he should not be evicted from such land. (3)If the person to whom a notice has been issued under Sub -section(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 Sub -section(2) he shall discharge the notice. (4 -A) Any person aggrieved by the order of the Assistant Collector under Sub -section(3) or Sub -section (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 (e) of Sec. 333. (4 -B) The procedure to be followed in any action taken under this Sec. shall be such as may be prescribed. (4 -C)Notwithstanding anything contained in Sec. 333 or Sec. 333 -A, but subject to the provisions of this Sec. (i) every order of the Assistant Collector under this Sec. shall, subject to the provisions of Sub -sections (4 -A) and (4 -D), be final, (ii) every order of the Collector under this Sec. shall, subject to the provisions of Sub -section(4 -D), be final. (4 -D) Any person aggrieved by the order of the Assistant Collector or Collector in respect of any property under this Sec. may file a suit in a court of competent jurisdiction to establish the right claimed by him in such property. (4 -E) No such suit as is referred to in Sub -section(4 -D) shall lie against an order of the Assistant Collector if a revision is preferred to the Collector under Sub -section(4 -A). Explanation: For the purposes of this section, the expression 'Collector' means the officer appointed as ' Collector' under the provisions of the U.P.land Revenue Act, 1901 and includes an Additional Collector. (4 -F) Notwithstanding anything in the foregoing Sub -sections, where any agricultural labourer belonging to a Scheduled Caste or Schedule Tribe is in occupation of any land vested in a Gaon Sabha under Sec. 117 (not being land mentioned in Sec. 132) having occupied it from before [May 13, 2007], and the land so occupied together with land, if any, held by him from before the said date as bhumidhar, sirdar or asami, does not exceed 1.26 hectares (3.125 acres), then no action under this Sec. shall be taken by the Land Management Committee or the Collector against such labourer, and [he shall be admitted as bhumidhar with non -transferable rights of that land under Sec. 195 and it shall not be necessary for him to institute a suit for declaration of his rights as bhumidhar with non -transferable rights in that land. (5) Rules 115 -C to 115 -H of the U.P. Zamindari Abolition and Land Reforms Rules, 1952, shall be and be always deemed to have been made under the U.P. Zamindari Abolition and Land Reforms Act, 1950 as amended by the Uttar Pradesh Land Laws(Second Amendment)Act, 1961, as if this Sec. has been in force on all material dates and shall accordingly continue in force until altered or repealed or amended in accordance with the provisions of this Act.;