JUDGMENT : RAVI S. DHAVAN, J. 1. This large number of cases raises the issue of the occupation of certain areas in the vicinity of the confluence of two rivers, the Ganga and the Yamuna. The occasion to file the writ petitions arose when as a prelude to the preparations for the approaching Ardh Kumbh, scheduled from the first bathing day coinciding with Makar Sankranti in January, precisely, 14 January, 1995, the local administration along with the State of Uttar Pradesh and the Central Government embarked on a drive to clean the area. The reference to the phrase local administrations needs to be specified as more than one local administration, apparently, is involved in the area which lies between the two rivers. Whether the Kumbh or the Ardh Kumbh or the fair (Mela) in the season of Magh, the area is identified within the radius of an are which will be chalked out with the Fort of Akbar as the centre of the circle. These writ petitions relate to occupation of the land between the confluence of the two rivers, the Ganga and the Yamuna. The Ganga as it flows in from the north and the river Yamuna as it flows in from the west, both join at Sangam. At the corner is situated the man made citadel, the Fort of Akbar. The history of administration of this local area, more or less, coincides with the history of the establishment of the British Cantonment at Allahabad. The area is part of the first Cantonment at Allahabad. In fact, the first occupation of British India begins with the occupation of the Fort. Thereafter, modern Allahabad whether of the Cantonment or of the Civil lines witnesses its planning and spread. The gazetteer District Gazetteers of the United Provinces, Vol. XXIII. Allahabad, H.R. Nevild 1910, records it, and it is therefore any one to see that the new city expanded at the close of 18th century. The officers of the British administration or of the army who had established the first cantonment are burled in a cemetery west of the fort and the locality today is known as Kydganj cemetery. The catalogue, i.e. graves which were declared as protected monuments is an official publication. List of Christian Tombs & Monuments, of Archaeological or Historical interest and their inscriptions in the North-western Provinces & Oudh, compiled and annotated by Rev. A. Fuhrer, Allahabad, 1896. The catalogue, i.e. graves which were declared as protected monuments is an official publication. List of Christian Tombs & Monuments, of Archaeological or Historical interest and their inscriptions in the North-western Provinces & Oudh, compiled and annotated by Rev. A. Fuhrer, Allahabad, 1896. 2. The control effectively and undoubtedly of the area around the Fort had been of the military. The administration draws its sanction from the Cantonments Act, 1924 and the rules framed under it. The open area within the vicinity of the Fort but along the Fort and the Ganges is the West Bank of this river. It is submerged during the floods. It is distinctly demarcated by an embankment running from the Fort, in a south-north direction to an old quarter of the city, known as Daraganj, also a suburban railway station of the same name, upto the proximity of another suburban station named as Prayag. This is the massive Bundh which was constructed by Akbar the Great. Thus, below the Bundh on the east of it lie the sands and the banks of the Ganga. Towards the west of It open ground and beyond that the city of Allahabad : the military calls this the parade ground. This parade ground is upto the Minto Park, recorded as Survey No. 36. It was in this park that in 1858 that the assumption of the Government of India by the sovereign of Great Britain was announced by Lord Canning at a darbar at Allahabad in a proclamation issued on 1 November, 1958 in the name of the Queen. This was known as the Queen's Proclamation. The control of Indian Government was finally assumed by the Crown from the East India Company. It was in pursuance of this proclamation that Queen Victoria received the title of Empress and the subsequent Kings, as Emperor. The administration came under the Governors General and Viceroy. 3. The matters before the Court concern two distinct areas. 4. One set of cases, a large number of them, concern the area below, or on the embankment (the Bundh); specifically the area east and between the Bundh and the river Ganga. These are Writ Petition Nos. 25959, 25960, 26272, 26625, 26700, 26795, 26886, 28980, 26981, 27009, 27010, 27050, 27205, 27260, 274461, 27475, 27531, 27533, 27753, 27801, 27833, 28484, 28797, 28955, 29018, 29286, 29661 and 30129 of 1994 and 27897 of 1995. 5. These are Writ Petition Nos. 25959, 25960, 26272, 26625, 26700, 26795, 26886, 28980, 26981, 27009, 27010, 27050, 27205, 27260, 274461, 27475, 27531, 27533, 27753, 27801, 27833, 28484, 28797, 28955, 29018, 29286, 29661 and 30129 of 1994 and 27897 of 1995. 5. Two cases relate to the area on the opposite side of it, the approach to the Bundh, the open ground west of the Bundh, known as the parade ground and otherwise military parade ground. These are Writ Petition Nos. 27753 and 27489 of 1994. 6. The banks of the river Ganga have been subjected to peculiar and bizarre claims by the Petitioners, the like of which has never been heard of in history or legend. The great epic Mahabharat even did not permit the kingdomless Pandavs to part with Draupadi as legend frustrated It when the reels of her sari would never unfold, no matter how one tried, and the nakedness of the action was never meant to succeed. In the cases before the Court, the Court painfully records that the Petitioners, have been so naked and ruthless in their claims that they talk in terms of possessing tracks or plots of land which annually got submerged by the river Ganga. The Petitioners lay claim to the banks of the Ganga as having received them as gift or donation. Some claim that the sand and the banks of Ganga have been given them by wills, codicils and testamentary dispositions. Other Petitioners talk of claims by a licence granted to their father or relatives being inherited and they speak of having inherited the shoreline of the Ganga. There are others who, without any shame, talk of selling one temple to another by a registered agreement to sell. One Petitioner talks in terms of having received the river bank on a sale consideration of Rs. 33,000 by a registered document. There are few who talk in terms of occupancy rights and adverse possession. There are also cases of having perfected their occupation by a judgment in a suit which was decreed. These are the situations before the Court. 7. Relating to the facts of the case, the legislation which operates in the area in reference to the issues raised in the writ petitions is being noticed at the outset else, the perspective will not be clear. These are the situations before the Court. 7. Relating to the facts of the case, the legislation which operates in the area in reference to the issues raised in the writ petitions is being noticed at the outset else, the perspective will not be clear. A proclamation was issued in 1916 during the time of Baron Chelmford as Governor General and Viceroy under a federal enactment through the Lieutenant Governor of United Provinces of Agra and Oudh to announce by a gazette publication "that It is necessary to impose restrictions upon the use and enjoyment of the lands in the vicinity of Allahabad Fort in the Allahabad district, and which are more particularly set forth in the sketch plan of the land referred to, a copy of which has been deposited in the office of the Collector of Allahabad District." The declaration continues to notify "that, from and after the publication of the public notice mentioned in Section 3, Sub-section (2) of the said Act, the restrictions mentioned in Sections 7 (a) and 7 (b) of the said Act shall attach to the land within the said zone, lying within 1000 yards from the crest of the glacis of the said Fort...." The declaration continues to add "(1) No variation shall be made in the ground level and no building, wall, bank, or other construction of permanent materials above the ground, shall be maintained or erected, added, or altered" except by "written approval of the General Officer Commanding the Division." The declaration in the notification added." Provided also, that any person having control of lands as owner, lessee, or occupier shall be bound forthwith to destroy or remove such huts, fences or other constructions without compensation upon the order in waiting signed by the General Officer Commanding the Division." The notification further stipulated "No wood, earth, stone, brick, gravel, sand, or other material shall be stacked, stored or otherwise accumulated." "Any person having control as owner, lessee, or occupier was forthwith required to remove road ballast, manure or agriculture produce without compensation on the requisition of the General Officer Commanding the Division." The railway authorities were favoured with recognition to be exempted provided they apply for such concessions which the General Officer Commanding the Division may permit. Existing buildings as on the days of the notification, as surveyed and entered in the Schedules "A" and "B" attached to the plan mentioned in paragraph 1, were exempt, provided "so long as these remain unaltered as they exist at the date of this notification." This notification was issued under the Indian Works of Defence Act, 1903. It is dated 26th July, 1916. Notification published in United Provinces Gazette, July 29, 1916 (Part I), pages 1402, 1403, No. 1511/III-456 by Section 3, Sub-section (1) of the Indian Works of Defence Act, 1903 (VII of 1903). 8. The Cantonments Act of 1924 came thereafter supplementing the earlier legislation on the subject relating to the administration of Cantonments in India. 9. To complete the scenario of connecting the military with administration and the law in special reference to the Fort built by Akbar the Great at the confluence of the river Ganga and Yamuna, reference may be had to the "agreement between the Nabab Shujah-ul-Dowla and Brigadier General Sir Robert Barker, relative to the Fort of Allahabad, 20th March, 1772." The text of the Agreement A collection of Treaties, Engagements and Sunnuds, relating to India and neighbouring countries, compiled by C.U. Attchison. B.C.S., under Secretary to the Government of India in the Foreign Department, Vol. 11, containing the Treaties & relating to the N.W. Provinces, Oudh, Nepal the Punjab and the States on the Punjab Frontier, Calcutta Printed by G.A. Savielle and P.M. Cranenburgh, Bengal Printing Company Limited, 1863 is reproduced: No. XXIII An agreement between His Highness the NABOB-UL-DOWLA, Vizier of the Empire, on one part, and Brigadier-General Sir Robert Barker, Commander-in-Chief of the Forces of the United Company of Merchants of England trading to the East Indies, under their Presidency of Bengal, on the part of the said Company, on the other, relative to the Fort of Allahabad. Be it known to all those to whom it may or shall in any manner belong, that General Sir Robert Barker has agreed upon the following Articles with His Highness relative to the said Fort: First - His Majesty Shah Allum having been pleased to confer on and make over to the Nabab Shujah-ul-Dowla, Vizier of the Empire, the Fort of Allahabad, whenever His Excellency shall demand the said Fort, at the expiration of ten days after such demand shall be made, the troops of the English East India Company shall evacuate the said Fort and deliver it up to His Excellency. Second - The troops of the English East India Company shall garrison the Fort of Allahabad in the same manner on the part of the Vizier, as heretofore they held, it for the King, until it is demanded by the Nabab Shujah-ul-Dowla, unless the said Company may find it necessary to withdraw their troops and consequently evacuate the said Fort before such a demand may be made. In such case timely notice to be given to His Excellency. (Signed) ROBERT BARKER Signed and sealed by the contracting parties at the Camp at Sunday this 20th day of March, in the year of our Lord One Thousand Seven Hundred and Seventy-two. In the presence of us (Signed) GABRIEL HARPER JOHN COCKERBELL WILLIAM DAVY 10. The early days of the British dominion in India saw camps, stations, and posts of the field army develop into cantonments where troops were stationed in garrison. By Regulation III of 1809, the support of the police and the maintenance of the peace within the limits of cantonments and military bazars was vested in the Officers Commanding the troops quartered at such places in 1864, a Military Cantonment Bill was introduced in the Council of the Governor-General of India. The Bill was amended and enacted as Act XXII of 1864, an Act to make provision for the Administration of Military Cantonments. The Act repealed certain portions of Regulation III of 1809 and XX of 1810 of the Bengal Code. The Madras Cantonments Act I of 1866 and the Bombay Cantonments Act III of 1867, were based on Act XXII of 1864 and superseded the Regulations hitherto in force in those territories. 11. The Act repealed certain portions of Regulation III of 1809 and XX of 1810 of the Bengal Code. The Madras Cantonments Act I of 1866 and the Bombay Cantonments Act III of 1867, were based on Act XXII of 1864 and superseded the Regulations hitherto in force in those territories. 11. The first comprehensive cantonment law extending to the whole of British India came as a Bill which saw enactment as Act III of 1880. Later to be amended by Act XIII of 1889. There were further amendments by Act I of 1891 and Act XII of 1891, Act V of 1895, Act XII of 1896, Act XV of 1897 (repeating Act V of 1895), Act V of 1898, Act I of 1903 and Act V of 1909. 12. The Cantonment Code of rules framed under the Act was issued in 1909 and amended from time to time. 13. Act XV of 1910 repealed Act XIII of 1889. Two amendments had been proposed, namely (1) to confer the right to prevent indiscriminate use being made of open spaces in cantonments and (2) to remedy an omission in legislation as it did not give power to impose penalties for non-payment of taxes. 14. The Cantonment Code, 1912 was next issued and was amended from time to time. 15. Thereafter cantonment administration was regulated by the Cantonment (House Accommodation) Act, II of 1912, and the Cantonment Act XV of 1910, together with Cantonment Code, 1912, Act II of 1902 was superseded by Cantonments (House Accommodation) Act, VI of 1923. This measure made the matter of house accommodation for military officers one for the military authorities to deal with and left cantonment authorities no concern with it. 16. The Cantonment Act XV of 1910, which had been slightly amended by Act X of 1914, and Act XVIII and XXII of 1919, was superseded by Act II of 1924, when it received the assent of the Governor-General on 16 February, 1924 and came to be known, even as it is today, the Cantonment Act, 1924. 17. Insofar as the aforesaid legislations stood to control the area under reference, the provincial legislation was not relevant at the relevant time. This was the U.P. Municipalities Act of 1916. But, 22 years later was enacted the U.P. Melas Act of 1938. 17. Insofar as the aforesaid legislations stood to control the area under reference, the provincial legislation was not relevant at the relevant time. This was the U.P. Municipalities Act of 1916. But, 22 years later was enacted the U.P. Melas Act of 1938. The U.P. Melas Act of 1938 specifically, insofar as the Allahabad is concerned, gave authority to the district administration, specifically, to control the melas or the congregations which take place between the confluence of the two rivers in the vicinity of the Fort in the lands which have been referred to above. This special legislation brings in a special administration in controlling the congregation of Magh Mela, during the Ardh Kumbh and the Kumbh. It is not unknown and it is common knowledge that during the Kumbh and the Ardh-Kumbh, more than a million pilgrims congregate particularly within the vicinity of the Fort and this manifold intensity of the population sees an increase particularly on bathing days, i.e. the days of Nahans. 18. Not obvious of the fact of these specific religious fairs which have been held year after year and for centuries, even from the time of the enactment of the Indian Works of Defence Act, 1903 and the proclamation of the notification dated 26th July, 1910, temporary occupation was permitted by the administration strictly by licence giving no right or title and if the license did not specifically express that the occupation would draw to a close within a specified period, the law declared that the permission was limited and the occupation along with the structures strictly temporary. The aforesaid notification of 26 July, 1916, Issued under the Indian Works of Defence Act, 1903, upon being announced, a copy of it was deposited with the Collector. Allahabad District. 19. Thus, until the U.P. Melas Act of 1938 was enacted, the area was under the total control of the General Officer Commanding the Division in carrying out the administration of this area. The U.P. Melas Act, 1938 only brought in a special administration to facilitate the holding of the Magh Mela, Ardh Kumbh or the Kumbh. It did not, in any way, dilute or compromise the notification of 26th July, 1916. By and large, the fairs took place year after year whether Magh Mela, the Ardh Kumbh or the Kumbh. The events passed without any thing special needing to be noticed. It did not, in any way, dilute or compromise the notification of 26th July, 1916. By and large, the fairs took place year after year whether Magh Mela, the Ardh Kumbh or the Kumbh. The events passed without any thing special needing to be noticed. It appears that the licenses for occupations at the relevant time and during a particular season on being sought were granted by the military authorities. The licence specifically gave permission to occupy a particular site for a particular period and with the season over, the possession reverted to the military administration. Those who applied and were granted the licence to occupy an allotted site were duly recorded by the Executive Officer of the Cantonment Board, the entries being made in the General Land Register (G.L.R.). The area had already been surveyed meticulously and the survey maps and the prescriptive occupation stood recorded in the appendix to the survey. Both these documents are Schedules 'A' and 'B' to the notification (26th July, 1916) Issued as a public declaration under the Indian Works of Defence Act, 1903. 20. The notification of 26th July. 1916, No. 1511/III-456 issued under the Indian Works of Defence Act, 1903 is, regard being had to the area in the vicinity of the Fort of Akbar at the confluence of the rivers Ganga and Yamuna, is a very Important document. It is accompanied by a survey set forth in the sketch plan, the notification itself says "a copy of which has been deposited in the office of the Collector of the Allahabad." The notification mentions two Schedules 'A' and 'B'. Schedule 'A' is the survey map. Schedule 'B' is the legend of the map, in effect, the entries of existing buildings. What was deposited with the "Collector of the Allahabad district" are copies. The schedules, the Court was intimated during hearings, was misplaced, though, the Collector, Allahabad refers to it and relies on it. 21. This record would have remained incomplete. But, the Station Commander, i.e. now the Sub-Area Commander, Allahabad, Brigadier M.L. Malik, has retrieved this document from the original survey maps, and had the area, referred to in the notification, resurveyed by the military and has listed the existing buildings prior to the notification of 1916, after it and today. This was a tedious and meticulous Job, to retrieve an old record lost and misplaced to archives. This was a tedious and meticulous Job, to retrieve an old record lost and misplaced to archives. The Sub-Area Commander, then, took responsibility to have the record of the notification dated 26th July. 1916 along with the Schedules "A" and "B" placed before Court by his affidavit. The affidavit is dated 19 September, 1995. The Sub-Area Commander has done public service in locating almost century old documents misplaced by the Collector's establishment. But for these documents, this record would still be awaiting judgment. The Court desires to convey its appreciation for the survey of a sensitive area undertaken by the Sub-Area Commander, in the cause of public service and public justice. The Court desires that its appreciation be conveyed to the Sub-Area Commander by the Chief of Army Staff and/or the Secretary, Ministry of Defence, Government of India. 22. The record which the establishment of the District Magistrate and Collector, Allahabad, relies upon but has misplaced and would not or could not produce before the High Court, the original lies with the Office of the Cantonment Board, Allahabad. It is file No. P.43/15. When the notification dated 26th July, 1916 was published, issued under the Indian Works of Defence Act, 1903, previous to this notification stood the notification No. 1282 dated 28th September, 1911, published in Government Gazette dated 30th September, 1911. Insofar as the notification of 26th July, 1916 is concerned, it was also forwarded by the military to the Cantonment Magistrate, Allahabad, by a communication dated 25th November, 1916. The text of which is reproduced: I.A.F. 72010 Gratis-Department Payment-Corps. Subject: Fort Zone, Allahabad. No. 5408 Office of the Assistant Commanding. Royal Engr. Station Allahabad dated 25th November, 1916 From Assistant Commanding Royal Engineer, Allahabad. To The Cantonment Magistrate, Allahabad Memorandum: With reference to U.P. Gazette Notification No. 1511/III-456, dated 26th July, 1916, I forward herewith a copy of the following Schedules and Plans for your information and guidance: (i) Schedule 'A' (ii) Schedule 'B' (iii) Zone Plan. (iv) 2 Blue Prints showing buildings in the zone. Sd/- Lt Col. R E. Assistant C.RE. Allahabad. 23. The District Magistrate and Collector, Allahabad, would be advised to locate: his record and order a serious inquiry, in the misplacement of it. Further, he could reconstruct his record on this subject from its original source and in possession with the military and the Cantonment Board, Allahabad. 24. Sd/- Lt Col. R E. Assistant C.RE. Allahabad. 23. The District Magistrate and Collector, Allahabad, would be advised to locate: his record and order a serious inquiry, in the misplacement of it. Further, he could reconstruct his record on this subject from its original source and in possession with the military and the Cantonment Board, Allahabad. 24. During the Kumbh of the year 1954, there was a stampede within the Mela area. A large number of pilgrims died. The general cause was a high density of congregation at a particular time and place and a mass movement of crowd which was incapable of being controlled. The details of the tragedy are in a report of the then Chief Justice Hon'ble K. K. Verma. The report was submitted upon a special commission constituted by the State of Uttar Pradesh. The report is titled : "Report of the Committee appointed by the Uttar Pradesh Government to enquire into the mishap which occurred in the Kumbh Mela at Prayag on the 3rd February, 1954". The Committee was constituted by the Governor by a notification dated February 7, 1954. It stated in its recital. MUNICIPAL (B) DEPARTMENT No. 691-P/XI-B-54 Dated Lucknow, February 7, 1954 Notification The Governor has been pleased to appoint a Committee to enquire into the causes of the very unfortunate mishap which occurred on the morning of February 3, 1954, in Kumbh Mela area at Allahabad. The Committee will consist of the following: Chairman: (1) Sri Kamalakanta Verma. Members: (2) Dr. Parma Lall. Ph.D., LL.D. (3) Sri A.C. Mitra, I.S.E. Chief Engineer, Irrigation. Sri Ram Bahadur Saxena. I. A. S., will be the non-member Secretary of the Committee. 2. The terms of reference of the Committee will be: (i) to examine and ascertain the exact circumstances which resulted in the tragedy. (ii) to review the arrangements which were made in the Mela this year for the convenience of the millions of people assembled there with a view to finding out if any other measures were possible and suggest ways and means as may be feasible for reducing the risk of such disasters in future. 3. The Committee will have its headquarters at Allahabad. 4. The Committee may visit such places in Allahabad and examine such officials as it considers necessary as well as such other persons who may be willing to assist the Committee. 3. The Committee will have its headquarters at Allahabad. 4. The Committee may visit such places in Allahabad and examine such officials as it considers necessary as well as such other persons who may be willing to assist the Committee. By order K.P. Bhargava, Chief Secretary to Government Uttar Pradesh. The report runs into 149 pages. The report draws its conclusion and gives remedial measures for Implementation to the State of Uttar Pradesh. But, unfortunately, 40 years after the report, it gathers dust in the State archives, far from being implemented. The remedial measures suggested by the Commission were not undertaken. The administrations - whether the military or the Cantonment administration on the State of Uttar Pradesh - did not pay heed to the suggestions except to retrieve them for the purpose of placing them before the Court. 25. Certain passages from the report are in context of these cases and are very relevant and are being noticed: The river Ganga - at any rate, during her passage through the district of Allahabad - frequently changes her course. According to the Gazetteer, she flows in a wide bed within the limits of which she is continually shifting her channel and her course is a succession of large bends, which characteristic shemaintains throughout. The Yamuna, on the other hand, as has already been stated, has a more consistent channel, and the changes in its course are of little importance. The changes in the course of the Ganga raise every now and then very serious problems for those who are in charge of the planning and the administration of the Mela. As has already been indicated, there is a Fort in the locality in which the Mela is held and the union of the rivers takes place in the vicinity of this Fort. The site of the confluence keeps shifting. It depends on the position of the channel of the Ganga. The Fort was constructed sometime in the last quarter of the sixteenth century under the orders of Emperor Akbar. The engineers found it necessary to er est an embankment, called a Bundh, extending for several miles from the north-east corner of the Fort in a northerly and northwesterly direction until it reaches that part of the Old Cantonment where Prayag Railway Station now stands. It is shown in the map marked II as Bundh Road. The engineers found it necessary to er est an embankment, called a Bundh, extending for several miles from the north-east corner of the Fort in a northerly and northwesterly direction until it reaches that part of the Old Cantonment where Prayag Railway Station now stands. It is shown in the map marked II as Bundh Road. The object of this embankment obviously was to prevent the Ganga from inundating the low-lying area between what may be roughly described as the "Civil Station" and the river. The map marked I shows the situation of the Government House, the Darbhanga Castle and Colonelganj. They are all on high land, but immediately to their east the land slopes steeply right down to the bank of the river. During the rains the Ganga is one vast sheet of water, the width in certain places at times being as much as two or three miles, but in the winter and hot whether it shrinks to comparatively small dimensions. It is only when the rainy season is over that one can have an idea as to where the channel of the river is going to be. Even during the winter months she keeps cutting away either her western or her eastern bank. in the latter case, the river goes on receding to the east and so leaves a wide area between her western bank and the Bundh and the whole Mela can in that case be accommodated in that area. The crucial importance of the area - particularly the width - of the land between the Ganga and the Bundh lies in the fact that all those who wish to bathe in the Sangam, at Prayag, from whichever direction they may be coming, have to pass along some portion of this land in order to reach the Sangam. At the time of the last Kumbh the area of this land was very small, being only about 80 acres, and the width at the narrowest part was only about 16 feet. Thus, the two most important features of the locality are the position of the channel of the Ganga - which keeps shifting - and the Bundh. 26. On the day when the tragedy took place, 3rd February, 1954, of several pilgrims were killed in stampede. Thus, the two most important features of the locality are the position of the channel of the Ganga - which keeps shifting - and the Bundh. 26. On the day when the tragedy took place, 3rd February, 1954, of several pilgrims were killed in stampede. The Commission inquiring into the matters recalled the events, and noticed the State of the topography in 1954 which contributed to deaths. The statement of the former Mayor of Allahabad and elder statesman as recorded by the Commission is: There were three roads in this part of the Sangam Area, (1) the Gangapatti Road by which the Bairagi processions had to return from the Sangam, (2) the Mahabirji Temple Road by which the Sanyasi processions had to return from the Sangam, and (3) what I have called the middle road, that is, the road by which all the processions had to go to the Sangam. Not only were these roads very wide, but there was also considerable space between the roads. Unfortunately, half of this open space had been occupied by volunteer' rest camps. Local Self-Government Engineering Department Offices, Kotwali and outposts, Area Magistrate's Office, trench latrines and shops. The other half was occupied by pilgrims who were bivouacking there and by a large number of beggars whose number was at least 10,000. The result was that there was very little room left for pedestrians to move about and they had no option but to walk along the roads meant for the Akhara processions. Then the Commission records: It may also be mentioned here that all the open space that was available, outside the enclosures of the Sangam Railway Station and of the Military Stores, in that part of the Parade Area which lies between Fort Road and the Bundh, was occupied by various camps and shops, etc. The result was that those who entered that part of the Parade Area from the West by the only two roads that existed, namely, Triveni Road and Kali Sarak (entering the latter in contravention of the traffic rules) had no means of escape when they realized that the situation was dangerous. The situation on Triveni Road was particularly bad because the major portion of the crowd coming from the town of Allahabad entered the Parade Area by this road. (vi) I now come to a matter which, in my opinion, requires immediate attention. The situation on Triveni Road was particularly bad because the major portion of the crowd coming from the town of Allahabad entered the Parade Area by this road. (vi) I now come to a matter which, in my opinion, requires immediate attention. All over the Bundh and in its neighbourhood numerous structures of all kinds have been erected and they certainly constitute serious obstruction to traffic. It appears to me that they are all encroachments upon land belonging to Government and I find it difficult to understand how these encroachments have been allowed to be made. Apart from other considerations, the whole of this land forms part of a military area and it is not right that any portion of it should be occupied by persons who have no business to be there. During our numerous inspections of the locality we have found that constructions are still going on, and a few constructions have even come into existence since the last Kumbh Mela. I would strongly urge upon Government-State as well as Central - to take all necessary steps to have these encroachments removed as soon as possible and to have further constructions stopped immediately. (vii) One highly undesirable result of the erection of these structures is that those who construct them take earth from the land lying immediately to the east of the Bundh. That is how numerous ditches have come into existence all over that area and the ditch, situated immediately to the north of Camp No. 1, which played so prominent a part in the tragedy on the 3rd of February last, was one of such ditches. I suggest that no time should be lost in stopping the digging of these ditches. (d) The whole of the Parade and the Sangam areas should be kept open. The military authorities should be requested to remove their Salvage Depot, Stores, etc. to some other suitable locality. The Agriculture Department should be requested to remove their farm to some other place. (h) The minimum of essential camps, e.g. a first aid post, and a police outpost, should be located in the Sangam area and they should occupy the minimum of space. No residential or rest camps, official or non-official, should be allowed in the Sangam area. Necessary number of takhts for the Pragwala and the necessary amount of space for the Barbers' enclosure should be allowed. No residential or rest camps, official or non-official, should be allowed in the Sangam area. Necessary number of takhts for the Pragwala and the necessary amount of space for the Barbers' enclosure should be allowed. One shop, selling flowers, should be allowed. (t) All necessary steps should be taken as soon as possible for the removal of all encroachments on the Bundh and in its neighbourhood. (u) No one should be allowed to dig earth and to create ditches anywhere in the Sangam or in the Parade area. 27. Incidentally, not that it is relevant to the case, the sittings of the 1954 Kumbh Mela Commission inquiring into the deaths by stampede took place at the High Court. Chief Justice Hon'ble Kamla Kant Verma, Chairman of the Commission records in the conclusions: Before parting with this Report, I wish to express once more our deep sense of obligation to the Hon'ble the Chief Justice and the Hon'ble Judges of the Allahabad High Court, for permitting us to use one of the Court rooms for our sittings.... 28. The petitions before the Court are basically no different, than the ones which had been filed almost 20 years ago, i.e. during the year 1976. Some of the Petitioners are common in the cases now before the Court. Otherwise, if the Petitioners are not common, the site of occupation is common. 29. The immediate cause for filing these petitions arose when during the month of August 1994, the Petitioners contend, they were threatened on being evicted from the sites, which they occupy and further demolition of any building which they may have constructed. The Petitioners contend that some of the buildings, in fact, were demolished. On their apprehension, they sought protection from this Court that until the matters are heard, they should not be either evicted or if they are housed in a building, their buildings be not demolished. At the time when the petitions were brought, the Court did protect the Petitioners by an ad interim order, upon prima facie establishing before the Court from the record, that their occupation was by permission of the authorities, without questioning them at that stage whether it was a license or any other right, by which they may lay claim. At the time when the petitions were brought, the Court did protect the Petitioners by an ad interim order, upon prima facie establishing before the Court from the record, that their occupation was by permission of the authorities, without questioning them at that stage whether it was a license or any other right, by which they may lay claim. Many Petitioners claim to have filed an earlier writ petition in 1976, which had been consigned to the record after a statement had been made by the Advocate General. U.P. or the Chief Standing Counsel for the State of Uttar Pradesh that the action which the Petitioners apprehend was not intended, thus, the fate of the petitions filed in 1976 were dismissed as infructuous. 30. One fact needs to be noticed, as it is a fact brought on record by the Petitioners. It is not disputed by any of these Respondents, whether the State of U.P. the Central Government or the Cantonment Board in one writ petition, the record reveals the dispossession of the Petitioners was restored on an undertaking of the Advocate General, U.P. The occupation of the Petitioner was blessed by an Inaugural ceremony by the Chief Justice of the Allahabad High Court with the Commissioner and the District Magistrate of Allahabad present at the function. It was a public function on 21st March, 1976. 31. The Petitioner in Writ Petition No. 25960 of 1994, Lord Shiva Birqjmcm in Hcmdia Baba Yogalaya, Triveni Bundh, Allahabad brings out the facts himself. He says "the function on 21st March. 1976 was performed and attended by amongst the top most district authorities as well as many elites of the society including Hon'ble Judges of this Court and other personals (sic) of District Administration." 32. The unauthorised temple as an encroachment on the Bundh was demolished in 1976. On this the Petitioner submits. That against the illegal and arbitrary acts of proposed demolition, the Petitioners had made a representation to the Hon'ble the Prime Minister, the then Smt. Indira Gandhi and a letter thereafter was issued by then P.P.S. to the Prime Minister Shri R.K. Dhawan addressed to the then Chief Minister, U.P. on 8.12.1976. The Petitioner continues to submit. That in the above noted illegal partial demolition of the Yogalaya on a representation on behalf of the Petitioner the Prime Minister had also sanctioned a sum of Rs. The Petitioner continues to submit. That in the above noted illegal partial demolition of the Yogalaya on a representation on behalf of the Petitioner the Prime Minister had also sanctioned a sum of Rs. 10,000 for the reconstruction of the part of the portion so damaged during course of demolition and thereafter, on 8.12.1976 the then Mela Officer/D.M. Magh Mela, wrote letter to Executive Engineer, Irrigation, Allahabad, that out of the sum of Rs. 10,000 so allotted for the reconstruction of the Yogalaya, the same to be done by 16.12.1976 and same is the wish of the then Chief Minister of U.P." The Petitioner refers to and placed on record the communication dated 8.12.1976 from the Prime Minister's House, New Delhi, addressed to the Chief Minister, U.P. at Lucknow. Also on record is the communication dated 8.12.1976 on the follow-up action on the directions of the Chief Minister, U.P. to the Allahabad administration, to give damages of Rs. 10,000 to the Petitioner and repair the demolished portion. The next day, 9.12.1976, an inter departmental communication, U.P. records the sanction of this amount. 33. The Petitioner has brought out these facts before the Court to strenuously urge estoppel against the State of U.P. the Union of India and the local administration. The events the Petitioner narrates are the happenings of the period of the Emergency, as it was known two decades ago. From the Prime Minister's Office in New Delhi to the Chief Minister at Lucknow and thence to the Administration at Allahabad all orders were carried out within twenty four hours. There is no one whom the Petitioner left out in power in gaining access to occupy the banks of the Ganga in a prohibited area. The Petitioner names the powers himself: Prime Minister, Chief Minister, Chief Justice and Judges of this Court and the support of the local administration at that time. No estoppel applies, as the Petitioner desires it to. It is not unknown that law was cast to the winds during the Emergency. Power and anarchy and misplaced muscle prevailed during this time. The Petitioner's case will be dealt with in accordance with law like those of others. 34. No estoppel applies, as the Petitioner desires it to. It is not unknown that law was cast to the winds during the Emergency. Power and anarchy and misplaced muscle prevailed during this time. The Petitioner's case will be dealt with in accordance with law like those of others. 34. The others who lay claim to the sites they occupy, in effect, seek a declaration from this Court by issuing a writ of certiorari; to certify that their occupation on the banks of the river Ganga be recognised as a property right. By and large, most of them have been the beneficiaries of a license granted to them on their applying to the Cantonment Board. Others are illegal occupants who cannot explain their rights to be there. All occupation is recorded in the General Land Register of the Military Estates Officer, which record is maintained under the Cantonment Land Administration Rules, 1937, which have been framed in pursuance of the Cantonment Act of 1924. While the Petitioners claim otherwise that their origins of occupation is in pursuance of a licence being granted to a temple or a deity, the record shows that it has been granted to a particular person as a personal but temporary occupation for a limited period. The record is accepted by the Petitioners and in so far as the record stands, there is no issue between the Petitioners and the authorities which had the discretion to grant the licence. There are instances on record which reflect the circumstances of the licences being put to strange uses. The permission was, plain and simple to those to whom it was granted, a permission to occupy the banks of the river Ganga on the slope of her banks near the Sangam and the Fort of Akbar. The permission was for a limited period for the duration of the yearly Magh Mela, or the Kumbh or the Ardh Kumbh. The occupation besides being temporary was to be with temporary structures also. Yet some Petitioners have come with the strange submissions of alienating the shores and the sands of the Ganga by testamentary dispositions, contracts of sale, gifts and largesses. Some have been part of "real estate" deals by registered documents. 35. Such claims do not take into account that the fundamental nature of property on river banks has always been out of the ordinary. Some have been part of "real estate" deals by registered documents. 35. Such claims do not take into account that the fundamental nature of property on river banks has always been out of the ordinary. Cradles of civilisation have generally sprung up on the banks of major rivers, which have seen kings and commoners appear, and disappear, but the banks of the river and shores of the sea have never been recognised as the private preserve of any body. These belong to the people; the nation. The State is the trustee to ensure the common use without ownership. 36. The stand of the Respondents is primarily on two legislations. One of the State of Uttar Pradesh referring to the U.P. Melas Act, 1938. The other of the Union of India, drawing its authority from the Cantonment Act, 1924 and the rules framed thereunder. The affidavit of the State of U.P. refers to the notification of-26th July, 1916, issued under the Defence of India Works Act, 1903. 37. The entire matter on both sides has been dealt with as If individuals are claiming private rights and the State is resisting it. An ownership right as is claimed by the Petitioners and the denial of it by the Respondents on the basis of the three legislations, have been the theme of the arguments. No attempt or effort was made by either parties to go deep Into these matters of interpretation of a very ancient concept of the law which governs and regulates the shores and the banks of the rivers, lakes and the sea. A question where the answer lies in public law and the Constitution, the matter was casually treated as one in private law. The case of the Petitioners and the defence of the Respondents, the State of U.P. the local administration, the Union of India and its local administration, was ah exercise in claiming private rights and resisting it. There is much more which governs these areas. All questions of pure public and constitutional law. 38. The arguments have been absolutely divorced from the reality of the situation that the issue in itself is not one of private rights but one relating to public law or, for that matter, the law which would govern and keep at bay Individual rights on the banks of the rivers. All questions of pure public and constitutional law. 38. The arguments have been absolutely divorced from the reality of the situation that the issue in itself is not one of private rights but one relating to public law or, for that matter, the law which would govern and keep at bay Individual rights on the banks of the rivers. On this both sides, between the Petitioners and the Respondents took the issues before the Court casually. 39. The law must be interpreted in such a manner that it must not entertain rights wrongfully claimed against the interest of the people as a whole. When a basic question was asked by the Court repeatedly why only licences were granted to some of the Petitioners instead of proprietorship rights, no satisfactory answer was forthcoming on either side. Necessarily, the Court will have to go to the root of the matter on what may be the nature of the occupation of the Petitioners or others like them, on the banks of the river, or for that matter any river. 40. The ownership on the banks of the rivers and it does not matter whether it is Ganga, Yamuna, Brahmputra or Narmada, is a matter which comes within the realm of public law and not private law. It is a settled concept that what applies as law to the shores of the sea applies to rivers also. It is not a case of riparian rights in the present cases nor of any riparian property. 41. The settled principles over the centuries apparently are clear that the shorelines of the sea and those of the rivers, are governed by common law and the ownership of it belongs to no one not even to the State and what the State may not do, the people cannot do. These lands are held in the trust by the State. It is a matter of sovereignty not propriety rights. These are issues of public law, of eminent domain not private law and ownership. 42. In the circumstances, the Court cannot recognise the persons who are claiming rights on the banks of the Ganga. This is alluvial land. Their occupation may be permitted, but this is permission, not alienation by vesting a right in those who occupy. History also cannot be distorted as the Petitioners attempt to. 42. In the circumstances, the Court cannot recognise the persons who are claiming rights on the banks of the Ganga. This is alluvial land. Their occupation may be permitted, but this is permission, not alienation by vesting a right in those who occupy. History also cannot be distorted as the Petitioners attempt to. Some say they have occupied these banks of the river Ganga since time immemorial. When a congregation gathers on the confluence of these rivers in the months of winter, then people gather and disburse to return the next year and the year after and after that again. Millions have come and gone over the years and for centuries, and no mortal has claimed the shores of the Ganga much less the alluvial sands, mud and land between the two rivers, the Ganga and Yamuna near the Sangam. To claim it through a deity would be immoral. The claims after all are by mortals. These lands belong to the people in common enjoyment and satisfaction for having tread on these grounds, bathed in the waters of the Sangam and come out of it to retrace their steps to their homes. 43. Even great idiologists and scholars well versed in oriental polity, heritage and texts, like Shri Ganga Nath Jha, knew of the importance of the Sangam and the banks of the river Ganga, a land which could not be possessed and that for the people and the pilgrims to squat there was regulated by permission of the authorities in charge. in his humbleness and humility, he also applied for permission to occupy, but temporarily, a space on the banks of the Ganga but by committing that "it will be open to the military authorities to have the shed taketo down whenever an emergency arises necessitating the same." There are two letters which lie on record of the Allahabad Cantonment written by Shri Ganga Nath Jha. One is dated 5th March, 1935. The other is dated 24th March, 1935. Sri Ganga Nath Jha was applying to the authorities as a pilgrim or kalpavasi of the winter season 1934-1935 during the Magh Mela of that year. The text of the letter dated 5th March, 1935, as it lies on record is reproduced. (Record of Cantonment Board, Allahabad, File No. P43/15 Captioned "Bent Bundh (Fort) Cantt") Copy of a letter dated 5th March, 1935, from Mr. The text of the letter dated 5th March, 1935, as it lies on record is reproduced. (Record of Cantonment Board, Allahabad, File No. P43/15 Captioned "Bent Bundh (Fort) Cantt") Copy of a letter dated 5th March, 1935, from Mr. Ganga Nath Jha, George Town, Allahabad, to the Executive Officer, Allahabad Cantonment. I beg herewith for permission to put up a Pilgrim Shed on the crossing of the Ganges Road and the road towards Darya Ganj close to the point where one descends from the crossing on the way to the Sangam; the exact situation is indicated in the appended plan. I beg to state that the proposed shed shall be open on all sides and will be roofed with corrugated iron sheets supported by pillars. It will be handed over to the military authorities, for the purpose of being uses as a shelter for Hindu Pilgrims. It will be open to the military authorities to have the shed taken down whenever an emergency arises necessitating the same. I beg to add that "the Brigadier has no objection to a Shed being put up of the size and type asked for, and is applying to Headquarters. Lucknow, for approval" as communicated to the Commissioner Allahabad Division, by Major Watkish in his D.O. No. 5/3/G. dated February 20, 1935. In the same letter the Brigade Major has said that the applicant meanwhile should submit an application through the Executive Officer. Allahabad Cantonment. It is in accordance with this direction that I am making this application, and hope and pray that the requisite sanction may be accorded to me. I am appending a sketch-plan of the proposed shed. No. P-43/15/6481 Office of the Cantonment Authority, Allahabad, the 25th March. 1935. To, The Brigade Major, Allahabad Brigade Area, Allahabad Forwarded for favour of disposal. The land in question is P-2 land. Sd/- Captain Executive Officer, Allahabad Cantt. 44. At this juncture, it will be necessary to mention that the worst violator of the law has been the State of Uttar Pradesh Itself. Recommendations were made by a Special Commission, namely, the then Chief Justice, Kamla Kant Verma Commission, yet no remedial steps worth the name were taken. The survey which has been placed before the Court by Union of India and the Cantonment Board, i.e. the Military Authorities, shows occupation by organisations of the State such as Jal Nigam. Recommendations were made by a Special Commission, namely, the then Chief Justice, Kamla Kant Verma Commission, yet no remedial steps worth the name were taken. The survey which has been placed before the Court by Union of India and the Cantonment Board, i.e. the Military Authorities, shows occupation by organisations of the State such as Jal Nigam. Public Works Department and the U.P. Bridge Corporation. in so far as the U.P. Bridge Corporation is concerned, a State Corporation, it even filed a writ petition in 1994 when the Collector issued orders that such occupation be evacuated for preparation for the Mela. A State was virtually filing a writ petition against the State. This Court dismissed the writ petition on the ground that it could otherwise not lie against the orders of the Collector/Mela Adhikari. Writ Petition No. 37973 of 1994 U.P. State Bridge Corporation Limited and Another vs. Mela Adhikari, Ardh Kumbh, Allahabad and Others, dismissed on 25th August, 1994. 45. The unauthorised constructions of the State of U.P. and its departments have been fairly placed on record in the counter-affidavit of the State of U.P. This is the counter-affidavit of the Officer In-charge, Ardh Kumbh Mela, Allahabad, affirmed on 22 August, 1994 in these areas there are guest houses of State Government Departments and State Corporations. On the survey placed before the Court, by the Cantonment Board, Allahabad, the following Government occupation of the area is recorded. Electric Cremation House, Nagar Nigam. Allahabad' as Survey No. 70 (Part) and 86 (Part) Police Booth. Beni Bundh, as Survey No. 94/40. Inspection Bungalow and Guest House of Uttar Pradesh as Survey No. 94/40-Magh Mela Office as Survey No. 70/C. Inspection Bungalow and Guest House of U.P. Jal Nigam as Survey Nos. 94/34, 94/39 (Part), Public Works Department Office and Guest House as Survey No. 86. 46. Some of these occupations, on and near the embankment were noticed as encroachment by the Hon'ble Kamla Kant Verma Commission Report, 1954, on the Kumbh Mela deaths in that year. On the parade ground, west of the Bundh (embankment) there is more Government occupation. 47. While licences were granted to some of the Petitioners to occupy the shoreline of the rivers, even the nature of the structure which they could place was stipulated in the notification of 26th July. 1916. On the parade ground, west of the Bundh (embankment) there is more Government occupation. 47. While licences were granted to some of the Petitioners to occupy the shoreline of the rivers, even the nature of the structure which they could place was stipulated in the notification of 26th July. 1916. The purpose for indicating the nature of the structure was that the licence had to come to an end for more than one reason. There could not be a permanency of the occupation on the shorelines of the rivers. The license to make a structure does not offer any propriety rights. Some of those who were granted these licenses kept to their terms. They came to seek a license and then surrendered their occupation to return again the next year and thereafter. Some violated the terms of their license. They were not supposed to construct permanent structures but they did. Some did not even have a license and unauthorisedly occupied the shoreline and the alluvian terrain of the river Ganga below the embankment or on it. 48. The Court is not unsuiting the Petitioners by declaring that they have no locus standi as argued by the Respondents, as this would give no solution and will make the situation a perennial problem. It is on this aspect that an argument was submitted on behalf of the Petitioners without going deep into the records of the nature of the occupation. All occupation is recorded by survey and mentioned in the notification of 26th July, 1916. No propriety, individual right is recognised in law. Licenses granted by the Cantonment Board were to Individuals and were temporary. 49. There is no issue before the Court and all are agreed that if any occupation of the banks of the Ganga and Yamuna near the Fort of Akbar could be permitted, it would be under a licence. This licence could not be under any other sanction except by the authority named in the legislation of 26th July, 1916. Some Petitioners admit but claim that a licence was granted to their predecessors by the Executive Officer of the Cantonment Board, Allahabad, or the Military Estate Officer. They submit that for the occupation of a site referred to in the Government Land Register (G.L.R.) they pay tax. Some Petitioners admit but claim that a licence was granted to their predecessors by the Executive Officer of the Cantonment Board, Allahabad, or the Military Estate Officer. They submit that for the occupation of a site referred to in the Government Land Register (G.L.R.) they pay tax. All this and the occupation of the Petitioners recorded in the G.L.R. as a licensee or unauthorised encroachment gives them no right, vested or otherwise, to the land. 50. A licence creates no interest in land. B.M. Lall (Dead) by LRs. vs. Dunlop Rubber and Co. Ltd. and Others, AIR 1968 SC 175 . A licence is not transferable. Kallu and Others vs. Ganga Ram and Another, AIR 1924 All 825. Payment of tax as a consequence of it signifies nothing and no more can be read beyond the licence. Ahmedabad vs. Motilal Hirabhai Spinning and Manufacturing Co. Ltd. Ahmedabad, AIR 1936 PC 77 . 51. The origin of the licences, at the turn of the century was for a particular purpose being in the nature of a permission to occupy the land between the two rivers for the duration of the months of Magh and Phagun, corresponding to the months of January and February. These were not grants. These are the licenses granted to the Kalpavasis who joined in the congregation over years; the Magh Mela every year, and the Kumbh Mela or Ardh Kumbh Mela. Religion should not be abused to secure a vested right in an area which otherwise belongs to the people and the nation holds it in trust. The trust itself was betrayed when the purpose of the license was abused by converting temporary occupation for a certain period and hutments which were to be made of thatch and bamboo into permanent constructions and later on camouflaged as a temple, all unauthorisedly. If the area was to be seen as surveyed at the time when the notification of 1916 was issued, it was a clean area, as clean as the sand of the river, making these areas assessible to any person of the nation without regard to rank and status. If the area was to be seen as surveyed at the time when the notification of 1916 was issued, it was a clean area, as clean as the sand of the river, making these areas assessible to any person of the nation without regard to rank and status. The tragedy of the abuse of this license was that the people with rank, status, privilege and power squatted on the banks of the two rivers and claimed personal and proprietary rights and betrayed the rust that they will occupy it only during the months of Magh and Phagun during the bathing period. Historians mention that the India is the only living civilisation, with a culture and heritage which celebrates attaching itself to nothing material but yet claiming lineage which is as ancient as the creator Himself, Brahma. The banks of the river Ganga are the manifestation of that personality. From the melting single drop off the shows of the mountain, i.e. Bhagirathi and to that what is added by the glacier which is Gomukh, the mountain river as Bhagirathi becomes the Ganga. The cradles of civilisation. A heritage of the peoples who venerate it. Yet, no mortal may possess it. It does not permit it. This river held sacred by so many takes in the joy and the sorrows of the people. Kings, Emperors, sages, warriors, Mahatmas, Statesmen, tycoons and beggars. If they long that their ashes must Indeed mingle to disappear but never to reappear in a material world, turn to the Ganga. Its banks cannot be defiled by possession, by any one. The law of the river banks is moulded with respect to this heritage. It repells possession. It is universal in its application to rivers, be it the Ganga, the Yamuna, the Indus, the Narmada, the Cauvery, the Eupheratles, the Nile, the Rhine or the Danube. Rivers can never be possessed. The Ganga at the Sangam has moved at every fraction of a second, only Its flow with time is the permanent continuing process. 52. The law which is applicable to the shorelines of the sea, also applies to the banks of the rivers. There is, thus, no occasion for any personal hurt or umbrage of the fact that the law does not permit squatting and claims of proprietory rights on the banks of the rivers. 52. The law which is applicable to the shorelines of the sea, also applies to the banks of the rivers. There is, thus, no occasion for any personal hurt or umbrage of the fact that the law does not permit squatting and claims of proprietory rights on the banks of the rivers. If this were allowed Gomukh and Bhagirathi would be possessed by those who claim they could; mortals under veil of deities. These rivers are the common heritage of the people. Law in its common sense approach respects these time tested circumstances, in terms of equality for the common benefit of all. 53. Now coming to the Bundh; the massive embankment constructed by Akbar the Great contiguous to the Fort running parallel to both the rivers, the Ganga and the Yamuna. The stand of the administration, whether State or Union or the Cantonment Board, has been hostile to those who have occupied - the banks of the Ganga near the Sangam in reference to these cases. To the common man the Bundh is a mundane embankment. It is taken for granted. But, the Bundh itself is a monument which should be protected as an archaeological structure. The architect of the Bundh was the great Mughal Emperor, Akbar. The purpose of making it was to prevent inundation of the west bank of the river Ganges and half of the city itself in theory but for the embankment which is the Bundh, the shoreline of the Ganges would have been flowing across, the edge of the area around Bhardwaj Ashram. Ancient texts do mention the Ganga flowing next to the Ashram. It Is, thus, clear that without the Bundh of Akbar, the river in flood could flow through what is now the city. Allahabad slopes at this geographical mark and the contour is clear. The slope is toward east in the direction of the river Ganga. Three floods in the last 50 years have shown where the river was flowing in 1949, 1968 and 1978. This only reveals that even the might of the Bundh at times had to bend to the river Ganga in spate of floods. 54. On the Bundh and on its ridge runs a road. Three floods in the last 50 years have shown where the river was flowing in 1949, 1968 and 1978. This only reveals that even the might of the Bundh at times had to bend to the river Ganga in spate of floods. 54. On the Bundh and on its ridge runs a road. This road takes the nature of a public street, whether this is seen as a public street under the U.P. Municipalities Act, 1916, or a recent legislation, the Nagar Mahapalika Adhinlyam, 1959 (the U.P. City Corporations Act, 1959). A public street or its side walk, slopes not excluded, does not suffer encroachment. Instruction or invasion. A road or a highway partakes of the nature of a public street and either-side of it is not severed from it. A public street may be flat, a public street may be on a hill slope; hill on one side and slope on another. A public street on a ridge will have slopes on both sides. Both sides are part of a public street and the administration is obliged to maintain the street and the sides of it as a public road or street. The definition of public place and public street, both expressions are contained in the U.P. Municipalities Act, 1916/Sections 2(18) and 2 (19) and the U.P. Nagar Mahapalika Adhiniyam, 1959. [Sections 2 (60) and 2 (62)]. The terms "public place" and "street" are also found in the Cantonments Act, 1924. [Sections 2(xxxi) and 2(xxxvii)]. The embankment known as the Bundh, popularly as Triveni Bundh, is under the law both 'public place' and the road on it a public street. The obligation of the State or the city corporation to maintain it as such free from any invasion or encroachment is an obligation and continues under the law. That a public street is to be protected and preserved for the purpose for which it is intended has been reiterated in several decisions of the Supreme Court. Municipal Board, Manglaur vs. Sri Mahadeoji Maharaj, AIR 1965 SC 1147 , State of Uttar Pradesh vs. Ata Mohd. (1980) 3 SCC 614 and M/s. Gobind Pershad Jagdish Pershad vs. New Delhi Municipal Committee, (1993) 4 SCC 69 . 55. Municipal Board, Manglaur vs. Sri Mahadeoji Maharaj, AIR 1965 SC 1147 , State of Uttar Pradesh vs. Ata Mohd. (1980) 3 SCC 614 and M/s. Gobind Pershad Jagdish Pershad vs. New Delhi Municipal Committee, (1993) 4 SCC 69 . 55. In the peculiar circumstances of the Bundh, the maintenance would include buttressing the slopes every year to repair the damage which is done by corrosion and denudation by flood waters, wind and lashing rains of the monsoon. If this maintenance were not to be done year by year the beginning of the end of the Bundh which has now existed for more than four centuries, would -have been seen and contributed to by the Union of India, the State of U.P. the local administration inclusive, whichever may be responsible as one constituent or allot them. The Bundh itself is a national heritage. It is very difficult to ignore it as such. It is good for declaration as a public monument under, the Ancient Monuments and Site Remains Act, 1958. This embankment, otherwise known as the Bundh, has itself to be maintained as a monument notwithstanding that on its ridge it carries a public road. Its slopes need to be buttressed and protected with care. The Bundh can be buttressed but it cannot be dug into. 56. On the pleadings, arguments have been raised and the court has been reminded again and again by the Petitioners that while they are being singled out for different treatment, It is apparent that the State department itself has encroached the very area from which they are being asked to be evicted and a large and massive structure has been permitted to be erected, which is known as Shanker Viman Mandapam. The Petitioner contends that the foundation of this Mandapam is piled into the slopes of the Bundh by new methods of construction. The Petitioners contend that this had blessings right from the top of the administration in New Delhi and this benefaction saw the invasion of the Bundh itself. The fact is being noticed. The court cannot give any direction on this aspect for the simple reason as whoever may manage this Mandapam as a trust temple or otherwise, is not before the court but the matter before the court is a matter in public law. The fact is being noticed. The court cannot give any direction on this aspect for the simple reason as whoever may manage this Mandapam as a trust temple or otherwise, is not before the court but the matter before the court is a matter in public law. What may have happened as a mistake or deliberately planned as the case may be, the court does not know. But the record shows to the court that on the banks of the Ganga and the embankment of Akbar's Fort and within the distance off the crest and glaci of the Fort of Akbar and within the Cantonment, all these constructions have been made. 57. As repeatedly court's attention was drawn to the building constructed lately by Shri Adi Shankara Viman Mandapa Committee, Allahabad, and the Cantonment Board, Allahabad is a party Respondent in these cases; after filing its counter-affidavit, the record relating to this building was also produced. The record presents an embarrassing picture for the administration of military lands. The record reveals that the Military Estates Officer's, Allahabad Office took a spectator's seat when the building plans site No. 94/40, Beni Bundh (Fort, Cantonment, Allahabad, and classed as B-2 Military land), were drawn to his attention. 58. When the matter was referred to the Circle Office, Lucknow, the response is recorded by the Executive Officer, Cantonment Board, Allahabad of a resolution of the Board. The last paragraph of it says: "The M.E.O. Lucknow Circle. Lucknow vide his No. A-8/49/9//E30, dated 18 May, 1970 has Informed that Sy. No. 94/40. Allahabad (Fort) Cantonment is not under his management no action is required by his office (Y/64)." After the Circle Officer of the Military Estates Office shut his eyes to the matter referred to him, the Cantonment Board, Allahabad, in its resolution No. 4 of 30.6.1970 passed the following resolution recorded as: Copy of Cantt. Board Res. No. 4, dated 30.6.1970 Building Application - To consider the building application with plans dated 8.12.1969 from the Deputy Chairman, Shri Adi Shankara Viman Mandapa Committee, Allahabad, requesting permission for the construction of the temple on land measuring 100' x 70' on Sy. No. 94/90 Part Allahabad (Fort) Cantt. The site comprising Sy. No. 94/40, Beni Bundh (Fort) Cantonment, Allahabad is classified as B-2 land in the G.L.R. occupancy rights are shown in the public works Department. No. 94/90 Part Allahabad (Fort) Cantt. The site comprising Sy. No. 94/40, Beni Bundh (Fort) Cantonment, Allahabad is classified as B-2 land in the G.L.R. occupancy rights are shown in the public works Department. The Deputy Chairman has submitted a copy of the lease by which the land has been leased out to Adi Shankara Viman Mandapa Committee, Allahabad on 21.3.1969 for 30 years on payment of rupee one per annum. The M.E.O., Lucknow Circle, Lucknow vide his No. 4-8/49/9/E30, dated 18 May, 1970 has informed that since Sy. No. 94/40, Allahabad (Fort) Cantonment is not under his management no action is required by his office (Y/64). Res: The building application is sanctioned from Municipal Point of view. Passed by Majority of votes. True copy Sd/- for Cantt. Executive Officer, Allahabad. The record also shows that notice to erect or re-erect a building u/s 179 of the Cantonment Act, 1924, dated 8 December, 1969, was made by the Deputy Chairman, Sri Adi Shankara Viman Mandapa Committee. Allahabad to the Executive Officer, Allahabad Cantonment. By law, Part IVth of the form is sent u/s 181(3) of the Cantonment Act, 1924, to the Military Estates Officer, Lucknow Circle for remarks. 59. But, on 30th April, 1988, the administration of Military Estates Officer which eighteen years earlier had placed on record that this particular area and site was not under its management and no action was required at that office, seemed totally embroiled in it. A resolution of the Cantonment Board, Allahabad in this context places on record the following: Copy of C.B. Res. No. 1, dated 30.3.88: 1. Building application - To consider building application along with plan received vide letter dated 23.2.88 from Shri Adi Shankara Viman Mandapa Committee, 5 Prayag Street, Allahabad requesting for sanction of an auditorium, Pathsala, Library and accommodation on land comprising Sy. No. 70 (part) (Fort) Cantt. Allahabad. The land measuring 4047 sq. mtrs. has been leased to Shri Adi Shankara Viman Mandapa Committee, Allahabad out of Sy. No. 70 (Fort) Cantt. in Schedule VIH of C.LAR. 1937, w.e.f. 5th May, 1982. The site is situated outside civil notified area under the management of D.E.O. In this connection D.E.O. Allahabad Circle, Allahabad letter No. A-7/137/LC/145, dated 23 March, 88 giving no objection to the proposed construction, u/s 181(3) of the Cantt. 1924 is also placed on the table. 1. in Schedule VIH of C.LAR. 1937, w.e.f. 5th May, 1982. The site is situated outside civil notified area under the management of D.E.O. In this connection D.E.O. Allahabad Circle, Allahabad letter No. A-7/137/LC/145, dated 23 March, 88 giving no objection to the proposed construction, u/s 181(3) of the Cantt. 1924 is also placed on the table. 1. Res: Considered and recommended that the plan be sanctioned. The sanctioned plan should be adhered to in all particulars. The construction should be commenced within two months and completed within one year from the date of communication of the sanction. A notice under Section 74 (sic) of the Cantts. Act, 1924 will be given by the applicant to the Cantt. Executive Officer on completion of the work. Sd/- Executive Officer Allahabad Cantonment. 60. The contradictions in the powers which played their role in this matter are apparent. The record placed before the court shows that by letter No. Y-64/2279 dated 24 December, 1969, the Executive Officer, Cantonment Board. Allahabad wrote to the Society, i.e. Shri Adi Shankara Viman Mandapa, Allahabad, questioning them of its authority by which it had occupied military land. The text of the letter is: Tele. No. 2557 No. Y-64/2279 Office of the Cantonment Board. Allahabad - 1 24 December, 1969 To, The Deputy Chairman, Shri Adi Shankara Viman Mandapa Committee, Allahabad C/o Office i/c Magh Mela, Allahabad Subject: Construction of a temple on the land comprising Sy. No. 94/40 pt. Class B-2 Land Allahabad Fort, Cantonment Dear Sir, Reference your building application with plans dated 8.12.69 (received on 16.12.69). 2. Please state the authority under which you are authorised to occupy 100' x 70' of land out of Sy. No. 94/90 Class B-2 land. The land as per our record belongs to U.P. Government. 3. On hearing from you the matter will be placed before the Board for consideration. Yours faithfully Cantt. Executive Officer, Allahabad OT/(D.R. Paul) 61. The occupancy of this particular site 94/90 is shown in the Government Land Register (G.L.R.), maintained by the Defence Estate Officer, in the name of Public Works Department. The word "belongs" in the aforesaid communication dated 24 December, 1969, is not an accurate expression. 62. The Executive Officer. Cantonment Board. Allahabad, received the following reply from the Society, Shri Adi Shankara Viman Mandapa Committee. The word "belongs" in the aforesaid communication dated 24 December, 1969, is not an accurate expression. 62. The Executive Officer. Cantonment Board. Allahabad, received the following reply from the Society, Shri Adi Shankara Viman Mandapa Committee. No. 168/XV-MM-(1969-70), dated December 30, 1969 To, The Executive Officer, Cantonment Board, Allahabad Subject: Construction of a temple on the land comprising Sy. No. 94/40 bt. Class B-2 Land Allahabad Fort, Cantonment. Dear Sir, Reference your letter No. Y-64/2270, dated 24.12.69. I am to state that the land over which the temple is proposed to be constructed have been leased out to "Shri Adi Shankara Virnan Mandapa Committee, Allahabad" on 21.3.1969 by the State Government. A copy of the lease is enclosed herewith for information. It shall feel obliged if the matter is expedited at your end. Yours faithfully Sd/- (U.R. Srivastatva) Manager, Magh Mela for Deputy Chairman, Shri Adi Shankara Viman Mandapa, Committee, Allahabad. Encl: As above 63. So the record shows that on military land under the administration of the Cantonment authorities, in records of the Government of India, the Government Land Register (G.L.R.) as allotted to the Public Works Department, U.P. the lease was granted by the State Government, Could this be done in the face of the notification dated 26th July, 1916, issued under the Indian Works of Defence Act, 1903? 64. What the Petitioners contend is that that they are not differently situated in occupying the banks and the embankment contiguous to the river Ganga than the Shankara Viman Mandapam and a writ, a prerogative writ issue in their favour as mandamus that on the same equality the Petitioners' possession be not disturbed. Similarly situated, but wrongfully is a circumstance which the law does not recognise. The law gives no sanction to commit two wrongs to right a situation. This is not rule of law nor justice according to law, it is anarchy. Similarly, but illegally situated is not a ground for Issue of a writ. This principle has been explained in the case of Chandigarh Administration and Another vs. Jagjit Singh and Another, (1995) 1 SCC 745 . Further, if a situation is being remedied from a wrong which was occasioned, there can be no legitimate expectation to join in the wrong and prevent the return to a perceptively correct and legal situation. This principle has been explained in the case of Chandigarh Administration and Another vs. Jagjit Singh and Another, (1995) 1 SCC 745 . Further, if a situation is being remedied from a wrong which was occasioned, there can be no legitimate expectation to join in the wrong and prevent the return to a perceptively correct and legal situation. This principle has been clarified specially in matters of land uses exploited illegally in the case of Ghaziabad Development Authority and State of U.P. vs. Delhi Auto and General Finance Pvt. Ltd. and Maha Maya General Finance Co. Ltd. and Another, (1994) 4 SCC 42 . 65. It is an illegality which remains incurable. It is an illegality in administrative largess and cannot be a claim in a matter before the Court as an equality to commit more illegality with sanction of the Court. This in itself will lead to ridiculous circumstances in violation of law, the rule of law. The only aspect which the Court can mention is that the matter needs a serious enquiry into officials who permitted the situation, who caused it and for all those who violated law in permitting this to happen, are answerable to law by prosecution or otherwise and this the Supreme Court has made clear in G.N. Khajuria vs. Delhi Development Authority, AIR 1996 SC 253 , that an illegality in urban planning cannot be overlooked and it does not matter who did it, will be liable for prosecution under the law. This is a matter for the State or the Union of India. The court has made a reference to this aspect, a wrong which has happened, as the Petitioners strenuously claim equality for committing more wrongs. 66. In the case of the Secretary of State vs. Forcar and Co. ILR (Ind App) 18, of facts from record, of any rights to accretion, the grants in themselves were restricted "by lines draum upon the plans attached to the grants." The Bengal Alluvian Regulation, 1824, enacts a rule of accretion but it differs from that applied in England and is based on custom and usage in the Madras Province a rule of accretion was applied but on the view that the custom and usage was the same as in Bengal. Any principle of accretion is excluded by the terms of the grant, "the stated purpose for which they were made, and the circumstances of the case." A freehold interest may attract the principle of accretion, if applicable. A right to accretion must be inherent in the grant consequential to an event of accretion. 67. The case of Secretary of State vs. Forcar and Co. (supra) was based on survey maps from the district record and parties admitted to accurate representations in the survey maps. The conditions prevailing or the foundations on which the grants were made was not available in this case, the Privy Council virtually held in the summing up that "Nothing is known as to the circumstances under which these fresh grants were made." 68. The Felix Lopez vs. Muddun Mohan Thakoor XIII Moores Indian Appeals 467 was a case "of disputed boundaries in respect to land which had been submerged and partially washed away by the River Ganges, and afterwards reformed on the original site". But, the principle set in this case would apply to the present cases. The issue in the cases before the Court is not one of accretion but of the source of sanction to grant temporary squatting during limited periods for a particular season. The following passage in the judgment is relevant: There are no words which imply the confiscation or destruction of any private person's property whatever. If a Regulation is to be construed as taking away anybody's property that intention to take away ought to be expressed in very plain words, or be made out by very plain and necessary implication. The Plaintiff here says, "I had the property. It was my property before it was covered by the Ganges. It remained my property after it was submerged by the Ganges. There was nothing in that State of things that took it from me and gave it to the Government when it emerged there was nothing that took it from me and gave it to any other person." And in answer to such a claim it would certainly seem that something more than mere reference to the acquisition of land by increment, by alluvion, or by what other term may be used, would be required in order to enable the owner of one property to take property which had been legally vested in another. The Privy Council in the same case adds: In truth, when the whole words are looked at, not merely of that clause, but of the whole Regulation, it is quite; obvious that what the then Legislative authority was dealing with, was the gain which an individual proprietor might make in this way from that which was part of the public territory, the public domain not usable in the ordinary sense, that is to say, the sea belonging to the State, a public river belonging to the State; this was a gift to an individual whose estate lay upon the River or lay upon the Sea, a gift to him of that which, by accretion, became valuable and usable out of that which was in a State of nature neither valuable nor usable. Their Lordships, however, desire it to be understood that they did not hold that property absorbed by a Sea or a River is, under all circumstances, and after any lapse of time, to be recovered by the old owner. It may well be that it may have been so completely abandoned as to merge again, like any other derelict and, into the public domain, as part of the Sea or River of the State, and so liable to the written law as to accretion and annexion. 69. Ultimately reflecting on the situation of the present cases before the Court, the following passages from the decision in Re: Attorney General Southern Nigeria vs. John Holt and Company Ltd. 1915 AC 599 (614, 615) will be reflective: The case of in re Hull and Selby Railway (2) is important not only for the opinion of Lord Abinger and Anderson B., but for the fact of its acceptance of this principle of the law (settled as between subject and subject) to the relations between the subject and the crown. "In all cases" said Lord Abinger "of gradual accretion, which cannot be ascertained from day to day, the land so gained goes to the person to whom the land belongs, to which the accretion is added and vice versa" and he repeats in different words his main proposition - "No authority is needed for this position, but only then known principal which has obtained for mutual adjustment and security of property. Alderson B. dwelt specially upon the double-sided operation of the rule. Alderson B. dwelt specially upon the double-sided operation of the rule. "I think" he said, "the question is precisely the same, whether the claim is made against the Crown or the Crown's grantee. Suppose the Crown, being the owner of the foreshore - that is, the space between right and low water mark - grants the adjoining soil to an individual, and the water gradually recedes from the foreshore, no intermediate period of the change being perceptible, in that case the right of the grantee of the Crown would go forward with the change. On the other hand, if the sea gradually covered the land so granted, the Crown would be the gainer of the land. The principle laid down by Lord Hale, that the party who suffers the loss shall be entitled also to the benefit, governs and decides the question." In the case of Attorney-General vs. Chambers (3) Lord Chelmsford refers to the double-sided operation of the rule in this way: "It must always be home in mind that the owner of lands does not derive benefit alone, but may suffer loss from the operation of this rule; for if the sea gradually steals upon the land, he loses so much of his property, which is thus silently transferred by the law to the proprietor of the sea-shore" ...Artificial reclamation and natural silting up are, however, extremely different in their legal results; the latter, if gradual and Imperceptible in the sense already described, becomes an addition to the property of the adjoining land the former has not this result, and the property of the original foreshore thus suddenly altered by reclamatory work upon it remains as before, i.e. in cases like the present, with the Crown. Then there is the case of Thakurain Ritraj Koer vs. Thakurain Sarfaraz Koer, TLR (PC) 637. The circumstances are of India. The area is present Uttar Pradesh. The issue is a river. The interpretation arises out of the Bengal Regulation XI of 1825. For whatever was decided in whosoever's favour would be equally applicable in the present case. Certain passages from this case requires attention: ...The law of India in relation to cases of this kind was contained in Bengal Regulation XI of 1825, which was applied to Oudh, with some unimportant modifications, by Act XVIII of 1876. For whatever was decided in whosoever's favour would be equally applicable in the present case. Certain passages from this case requires attention: ...The law of India in relation to cases of this kind was contained in Bengal Regulation XI of 1825, which was applied to Oudh, with some unimportant modifications, by Act XVIII of 1876. The principle laid down in that regulation as Lord Justice James observed in giving the judgment of this Committee in the well known case of Lopez vs. Muddun Mohun Thakoor, 13 Moore I.A. 467, "is one not merely of English law, but it is a principle founded on universal law and justice; that is to say, that whoever has land, wherever it is, whatever may be the accident to which it has been exposed, whether it be a vineyard which is covered by lava or ashes from a volcano, or a field covered by the sea or by a river, the ground, the site, the property, remains in the original owner. The first point to be ascertained, therefore, was, who was the original owner of the property in dispute and on that point their Lordships were of opinion that there was no room for doubt that it was the property of the Respondent's predecessor in title. Presumably land situated in the Respondent's villages would belong to the Respondent, whether covered by water or not, and however, it might be interested by the river in its devious course from year to year. That view was adopted by the local authorities in proceedings taken in 1883 under Code of Criminal Procedure for possession of the land, and upon application to the Revenue Officials in 1885 for demarcation of boundaries. And in July, 1885, the Revenue settlement of "the alluvial and diluvial land" of those villages was made with the Respondent's predecessor in title. It would require very strong evidence on the part of the Appellant to disturb the conclusion thus arrived at and no such evidence had been adduced. 70. Case law from the United States is reflective and educative on the banks of the river and of claims of ownership to them. 71. In the matter of the Mayor Aldermen and inhabitants of New Orleans vs. United States, 9 L. Ed. 70. Case law from the United States is reflective and educative on the banks of the river and of claims of ownership to them. 71. In the matter of the Mayor Aldermen and inhabitants of New Orleans vs. United States, 9 L. Ed. 573, a tussle between a city corporation and the federal Government to a certain track of land as quays between the Missisipi river and the alluvion land saw observation from the Supreme Court in favour of the people. As the case relates to the city of New Orleans, in the State of Lousiana. reference to King is the King of France. On public grounds dedicated to the people, the United States Supreme Court had reservations whether peoples' right a common land could be alienated. If this power was possessed by the king, why was the authority given in the law which had been stated, to grant permission to construct outstanding on public ground? This power, as appears from the record, was exercised over the common in controversy, and only in three Instances where Lords granted absolutely. In the case of the Mayor, etc. of New Orleans vs. Burmudez, decided by the Supreme Court of Louisiana, 3 Martin 309, the court say "however contradictory these expressions may appear to be, the worst conclusion which can be drawn therefrom against the city of New Orleans is, that they had not that kind of possession, which is the consequence of an absolute right of ownership. Yet the sovereign having never thought fit to exercise any further right over these commons, and the claim of the city to them having been recognised and confirmed by the successor of that sovereign, the inhabitants of New Orleans must be Considered as having never ceased to be the rightful possessor of that land" etc. There can be no difference in principle between ground dedicated as a quay to public use, and the streets and alleys of a town; and as to the streets, it may be asked whether the king could rightfully have granted them. This will not be pretended by anyone. And it is believed that a public right to a common is equally beyond the power of the sovereign to grant, unless he dispose of it under the power to appropriate property to the national use, and then compensation must be paid. 72. The case of St. Clair Co. This will not be pretended by anyone. And it is believed that a public right to a common is equally beyond the power of the sovereign to grant, unless he dispose of it under the power to appropriate property to the national use, and then compensation must be paid. 72. The case of St. Clair Co. vs. Lovingston, 23 L. Ed. 59, was on the boundaries of the river Missisippi as it flows through St. Clair County, Illinois. The issue is local to the parties in the United States, but some observations are indeed reflective to situations in India. Approvingly citing commentaries of the public domain on river bank, the observations are: By the American revolution the people of each State in their sovereign character, acquired the absolute right to all their navigable waters and the soil under them. Martin vs. Waddoll, 16 Pet. 367 and Russell vs. Jersey, Co. 15 How. 426. The source of navigable waters and the soil under them were not granted by the Constitution to the United States, but were reserved to the States respectively. And new States have the same right of sovereignty and Jurisdiction over the subject as the original ones. Referring to riparian rights, the judgment observes: ...The title to the increment rests in the law of nature. It is the same with that of the owner of a tree to its fruits, and of the owner of flocks and herds to their natural increase. The right is a natural, not a civil one. The maxim "Qui sentit onus debet sentire commodum" lies at its foundation. The owner takes the chances of injury and of benefit arising from the situation of the property. If there be a gradual loss, he must bear it; if a gradual gain, it is his. The principle apply alike to streams that do, and to those that do not overflow their banks, and where tides and other defenses are, and where they are not necessary to keep the water within its proper limits. 73. The common sense approach of law accepting the cycle of life in nature was never so close than guiding an organised society of habitats and civilisations near the shoreline of the sea and the rivers. The interpretation in law has been on the theme of public rights. 73. The common sense approach of law accepting the cycle of life in nature was never so close than guiding an organised society of habitats and civilisations near the shoreline of the sea and the rivers. The interpretation in law has been on the theme of public rights. An observation in an article, the Ownership of Land under Water, 27 HLR 80, in the Harvard Law Review on riparian rights is worth noticing. ...While it is a well-recognised rule of law that land under navigable waters belongs to the sovereign, and land under non-navigable waters to the riparian owners, the decisions are not uniform as to what tests determine navigability. Under the English rule, only waters affected by the ebb and flow of the tide are navigable in law in America, many courts have said that the term navigable "includes" any waters in fact suitable for travel. The Supreme Court of Tennessee has extended this latter rule to include waters capable of being made suitable for travel. State vs. West Tennessee Land Co. 158 S.W. 746 Venn. The cause of this diversity of opinion is probably historical. The English rule that on the land under the sea belongs to the crown would seem to be based on reason. The use of seashore and the right to land, fish, and gather sea animals was considered important in early times. To facilitate this it was necessary that the crown should own the land between the high and low water marks, and it was a natural conception that the land under the sea should belong to the crown.... When the question arose in America some courts in applying the general rule, seem to have taken the word "navigable" literally: and, considering the meaning given the term in England inapplicable to this country, extended the term "navigable" so as to include the large inland rivers and lakes. One idea in their doing so seems to have been to secure the public a right of way over waters navigable in fact. But in spite of the different opinions prevailing as to what waters are navigable in the technical sense, the actual decisions are not so very much in conflict. Few of them have been direct adjudications of title, and of these, many that have held title to be in the State are explainable by looking to the circumstances connected with the grants. Few of them have been direct adjudications of title, and of these, many that have held title to be in the State are explainable by looking to the circumstances connected with the grants. In view of the actual decision, therefore, a uniform test for navigability seems possible, although the diversity of views expressed by the courts makes such a result improbable. The English rule holding that only land under tidal waters belongs to the sovereign, coupled with a public right to travel over the actual navigable waters, is based on reason, is comparatively easy of application, and has been adopted by a number of American Jurisdictions. It is submitted that it is much more desirable that a test making land titles depend on the uncertainties on the actual navigability, which is neither based on fundamental reason nor necessary to secure the rights of public. 74. Ownership of the banks of the Ganges is not an issue, nor it can be, but now that the matters are being examined in reference to water, that is to say, national and state rivers, the distinction between sovereign jurisdiction must be clearly understood. When public right is asserted, by the State on behalf of and for the benefit of the people, in reference to the banks of rivers and streams and access to them, eminent domain is the context. If everything has a history, no right exercised must be without plausible explanation. Rivers and streams, on this aspect, are the exception. A passage from an article The question of Federal Disposition of State Waters in the priority States - Distinction between Sovereign Jurisdiction and ownership, 28 Harvard Law Review 270 explaining this situation in a legal Journal is relevant: With conclusion of terms out of the way the first thing for us to do is to acknowledge the distinction between sovereignty and ownership, between imperium and dominium. For it may be said that if prior to the statehood of the priority states the relation of the United States to the running streams was one of ownership or property either in the waters themselves or in their use, then the United States is the owner still, for it is not permissible to argue that there is anything in the conferment of statehood, which any more requires a transfer to the state of property in respect to waters, than in respect to lands or anything else. All that is necessary is a transfer not of property but of sovereign Jurisdiction. Of whatever, on conferment of statehood, the United States remained the owner, of that. Congress, under the constitution provision already alluded to, retained full power of disposition. But if the relation of the United States to the waters was one of sovereign jurisdiction and not of ownership, then, it may be that the power of disposition passed, upon conferment of statehood, to the States and now belongs to them. 75. Thus, yet for an additional reason these areas on either side of the National and State rivers, do not suffer private or individual ownership. Eminent domain applies in these areas. Private rights and private property is condemned. What is eminent domain in the context of the cases before the Court? Eminent domain is, broadly, the right or power to take property for public use. More precisely, it is "the right of the nation or the State, or those to whom the power has been lawfully delegated, to condemn private property for public use and to appropriate the ownership and possession of such property for such use on paying the owner a due compensation to be ascertained according to law...." Common necessity and interest" is an inherent political right, enjoyed by the State and pertaining to sovereignty, to appropriate the property of individuals to great necessities of the whole community where suitable provision is made for compensation.... Condemnation; to condemn land, Condemnation, generally speaking, is the implementation of the power of eminent domain. To condemn land is to set it apart or expropriate it for public use, in the exercise of the power of eminent domain.... The power of eminent domain is merely the means to an end. Although eminent domain is not a favourite of the law, the prevailing view is that the right or power of eminent domain, which has been called one of the highest powers of Government, is an attribute of sovereignty, inherent therein as a necessary and inseparable part thereof. The power of eminent domain is merely the means to an end. Although eminent domain is not a favourite of the law, the prevailing view is that the right or power of eminent domain, which has been called one of the highest powers of Government, is an attribute of sovereignty, inherent therein as a necessary and inseparable part thereof. It belongs to the sovereign alone, and represents the composite power to all the people in the State, except as limited by the state Constitution, although a theory in some case is that it is a reserve right vested in the State, and that when the State originally granted land to individuals the grant was under the implied condition that the State might resume dominion over the property whenever the interests of the public or the welfare of the State made it necessary. Such right antedates Constitution and legislative enactments, and exists independently of constitutional sanction or provision, which are only declaratory of previously existing universal law. The right can be denied or restricted only by fundamental law and is "a right inherent in society". It is superior to all property rights, and every owner of property holds it subject to the right or power of eminent domain. The right to condemnation depends on the fact that the property belongs to another" Corpus Juris Secundum, Volume 29A, pages 161, 162, 163, 164, 165, 166 and 167. 76. All parties before the Court forgot the relevant provisions of the Constitution of India. Chapter III of the Constitution deals with Property, Contract, Rights, Liabilities, Obligation and Suits. Of sovereignty and eminent domain, there was no lack of it in the areas in vicinity of the Ganga near the Fort of Akbar. For each departing Ruler exercising eminent domain and sovereignty, passed the baton to the next. There was never a right of owner of the Ganga and for the want of it areas around it, and those specifically identified by record were eclipsed by the principle of bona vacantia and such lands and spaces "shall, if it is property situate in a State, vest in such State and shall, in any other case, vest in the Union." This is the law of the Constitution as contained in Article 296. It is reproduced: 296. It is reproduced: 296. Property accruing by escheat or lapse or as bona vacantia - Subject as hereinafter provided, any property in the territory of India which, if this Constitution had not come into operation, would have accrued to His Majesty or, as the case may be, to the Ruler of an Indian State by escheat or lapse, or as bona vacantia for want of a rightful owner, shall, if it is property situate in a State, vest in such State and shall, in any other case, vest in the Union: Provided that any property which at the date when it would have so accrued to His Majesty or to the Ruler of an Indian State was in the possession or under the control of the Government of India or the Government of a State shall, according as the purposes for which it was then used or held were purposes of the Union or of a State, vest in the Union or in that State. 77. As old as civilisation is, and from the Maurayan Empire into the Turks, Khiljis, Lodhis, Moghals, the British and today, these lands around the Ganga and at the confluence of Ganga-Yamuna have had only one personality of eminent domain. The lands belong to the people with the nation as its trustee. These lands vest in no one, except as the Constitution of India declares it with the Union and the State. 78. In the particular area under dispute now: Sovereignty to control the areas in the hinterland of the vicinity of the Fort is an accomplished fact and recorded in history. The treaty of 1772 passed the eminent domain to those who are obliged to keep it in trust for the people, call it of Allahabad or of the nation. At that time, the State of U.P. had not been identified and the Republic of India yet had to come. The administration was controlled with Subas as its administrative division. Then came the Bengal Regulations, universally applied within the British territory. These were series of legislations enacted at the close of the eighteenth century, passed by the Governor General in Council. These were adapted and modified by Government of India (Adaption of Indian Laws) Order, 1937 and adapted and modified by the Adaption of Law Order, 1950. Then came the Bengal Regulations, universally applied within the British territory. These were series of legislations enacted at the close of the eighteenth century, passed by the Governor General in Council. These were adapted and modified by Government of India (Adaption of Indian Laws) Order, 1937 and adapted and modified by the Adaption of Law Order, 1950. To these cases before the Court, the reference is to Bengal Regulation No. XI of 1825 known as the Bengal Alluvion and Diluvion Regulation, 1825. It was only an extension of a rule and a declaration by a legislation that the land which lay on either side of the rivers, were to be recorded, treated, administered or held in trust for a very specific purpose. This was the first legislation which attempted to unversally recognise that nature recognises no ownership, only permissive use of the banks of the rivers and the lakes. 79. With the paramouncy of power passing from the East India Company to the Crown, these lands on the bank of the Ganga saw a very special treatment by a federal legislation. Straightaway, at the time when the treaty of 1772 gave the suzerainty (domain) over the Fort of Akbar to British troops, the lands became subject to laws of Cantonment, which has been discussed, became applicable to the area which the administration of the Fort exercised. Then came the Defence of India Works Act, 1903. in general, it crystalized the eminent domain over these lands as that the State's recognising no one's ownership over it except the public use of it for the development of the area for the common good of the people. It is in reference to this that the legislation of 26th July, 1916 by notification exempted the railway administration from passing through the land as railways would, by necessity, mean occupation of a track also, but for the common good of the people. The notification of 26th July, 1916 did not interfere with anyone's sentiment and acknowledged that in the area, the Ganga had left its unbroken and continuous heritage. The notification of 26th July, 1916 did not interfere with anyone's sentiment and acknowledged that in the area, the Ganga had left its unbroken and continuous heritage. This is a carefully drafted document which respected legend and heritage at the confluence of the two rivers and even permitted the authority named in the document to gran permission to occupy the sand of the river when it is possible to occupy it in short, during particular months, specifically after the floods recede completely to return again, but specifically the months of the winter. No more duration of occupation is tolerated that what the nature permits and the licence ceases to hold beyond the season when the river submerges, the occupation of men and material both, when the river in floods, the Ganga and Yamuna lash the ramparts of the Fort and the land around it. Thus, neither nature nor law permits any one's occupation at one stage and the licence is of a limited duralion. All this is clear cut and recorded history. It is, thus, that no one has, nor any one can claim to occupy the bank of the Ganges to call it his home. For any one who may claim his right or in the name of a deity, must admit that in these areas, he may come for Kalpawas and then depart as quietly as he came. Law has only tailored itself to this phenomenon. The banks of the river Ganga, or any other river, belong to the people with the nation as its trustee in generality of it also, there could be no presumption in favour of anybody apart from specifically it having been rebutted by the law of the Constitution of India. 80. A lot of emphasis was laid by the Petitioners in submitting that the powers of the authority under the U.P. Melas Act, 1938 cannot dispossess them. This argument was supplemented with the submission that if there be any authority to question the occupation of the Petitioners, it is the Cantonment Board. The Petitioners had laid too much stress on a vested right. They claimed to squat, if unauthorised or to occupy by licence the banks of the Ganga in the area in issue. This argument was supplemented with the submission that if there be any authority to question the occupation of the Petitioners, it is the Cantonment Board. The Petitioners had laid too much stress on a vested right. They claimed to squat, if unauthorised or to occupy by licence the banks of the Ganga in the area in issue. There is no issue before the Court that the Union of India or the State of Uttar Pradesh are at issues in the area of eminent domain to which Chapter III of the Constitution of India, particularly, Article 296, applies. Sovereignty of the Union or the State is not a matter in issue in these matters. Insofar as the U.P. Melas Act, 1938 is concerned, in special reference to Allahabad, for a limited period, for a specified purpose and of a particular area duly notified in the gazette, a special administration by sanction of the law takes over. This special administration does not, at any stage compromise, belittle, derogate or dilute the administration which vests and always has, in the military and the authorities of the cantonment. 81. This special administration has been cast a responsibility to ensure that the congregation, that is the Magh Mela or the Kumbh Mela, is planned, regulated, monitored and administered as if a part of the city finds a select administration. A clean and a clear area is an obligation on the administration. Where millions congregate, safety and health of the pilgrims and citizens has a direct nexus with administration. The Court does not propose to interfere with it. 82. In conclusion, the court must reduce the complexities of these cases to a simple order. The Petitioners have prayed for protection against eviction from, of demolition of, structures within the area governed by the Cantonments Act, 1924 and a special legislation for the area notified and dated 26th July, 1916 issued under the Indian Works of Defence Act, 1903. Under law, it is clear that no permanent permission to occupy these areas may be granted, only temporary licence at the time of the Melas, in particular. The exceptions are the case of the structures predating the notification of 26th July, 1916, under the Act, aforesaid which are mentioned in the survey and recorded and referred in Schedules 'A' and 'B' of this notification, with description and with further limitations and reservations set by it. The exceptions are the case of the structures predating the notification of 26th July, 1916, under the Act, aforesaid which are mentioned in the survey and recorded and referred in Schedules 'A' and 'B' of this notification, with description and with further limitations and reservations set by it. These are the only structures enjoying protection in law. Some of the temples are referred to in the Schedule to this notification of 26th July, 1916. For instance the Schedule 'B' to the notification contains a list of certain structures. Against Item M, there is a reference to a temple. The parametres are shown in Sheet No. 2 being the map. They are mentioned as 19 ft. x 18¾ ft. (in the map 19' x 18'.9"). The description reads. "Pucca platform with stone temple and underground room". A survey map of the sessions 1902-03 and 1910-11 published by the Surveyor General of India in 1912 Reg. No. 24D February 1912-SI-150 Reg. No. 24E, February 1912-Mily. Dept.-500. mentions a structure east of the ramparts of the Fort, opposite Cantonment Boundary Pillar 40 (C.B.P. 40) as "Mahabir." But the recent survey of the Government of India does show that the area is now riddled with encroachments and what the Petitioners casually contend as temples all are not temples. All this is on record from 1916 to date. No more recent construction thus has a legal right to remain permanently established in this area. This is the legal position and, therefore, these petitions must be dismissed. 83. It is obvious, however, that over the years the military authorities as well as their civilian counterparts have simply looked the other way as elaborate permanent structures came unhindered. The military authorities would be well advised to take more seriously the role that the law allots them in maintaining this area. 84. In exercising their legal right to administer this area, the Army should also keep in view the two rights over this particular area which predate even their own occupation. One is the right of the people of India to protection of their historical heritage; in the form of the Fort built by Akbar, the Bundh and any shrine recorded of historical significance in the survey which is available. 85. The second right is of the people to free access to the Sangam area a site of spiritual importance since before recorded history. 85. The second right is of the people to free access to the Sangam area a site of spiritual importance since before recorded history. In order to preserve the area from strong arm tactics and illegal intrusions that actually curtail the access of the ordinary pilgrim to this sacred space, some regulatory authority to obviously needed at the point in time. Under the present existing law, it is the Army that has the authority, and should exercise it as a sacred trust, protecting the ultimate rights of the people as a whole, to access to the Sangam and its bank. 86. The reliefs which the Petitioners have prayed for come in different style and shape. Writ Petition Nos. 25959, 25960, 26272, 26625, 26700, 26795, 26886, 26980, 26981, 27050, 27205, 27206, 27461, 27475, 27531, 27533, 27801, 27833, 28484, 28955, 28979, 29018, 29286 and 29661 of 1994 and 27897 of 1995 pray that a mandamus be issued to the Respondents that the structure of the Petitioners be not demolished; Writ Petition Nos. 25960, 25974, 27009, 27533 and 27753 of 1994 prayed for a relief in the nature of mandamus that the Respondents be restrained from dispossessing the Petitioners; Writ Petition No. 27010 of 1994 is a matter in which possession was wrested from the Petitioners they seek a relief for restitution; and Writ Petition Nos. 27019 and 27533 of 1994 seek compensation for the demolition which took place by the Respondents on the even filing of the writ petition in short, every Petitioner would like to remain where he or they are; law or no law. 87. The Court has already indicated in this judgment that the reliefs which the Petitioners seek, regard being had to the nature of occupation and the law which applies to the area, cannot be granted. Thus, the reliefs sought are denied and the petitions are to be consigned as dismissed in the light of the observations which have teen given in this judgment. But, at the same time, not denying to the Petitioners the liberty to apply to the appropriate authority to be granted a licence for the duration of the Magh Mela as a Kalpavasi, as a pilgrim - individually or a congregation. 88. All the writ petitions, thus, are dismissed. There will be no order on costs.