(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1 ADMIT.
Learned AGP Ms. Jirga Jhaveri waives service of notice of admission on behalf of respondent No.1; learned Advocate Mr. H.S. Mushaw waives service of notice of admission on behalf of respondent No.2 and learned Advocate Mr. V.C. Vaghela and learned Advocate Mr. P.R. Nanavati waive service of notice of admission on behalf of the respective respondents.
2 By way of the present appeals under Clause-15 of the Letters Patent, the original respondents No.5 and 6 have challenged the judgment and order dated 30th September, 2010, passed in Special Civil Applications No.6583 of 2009 and 6541 of 2009, by which the learned Single Judge has quashed and set aside the Order dated 1.6.2009 passed by the respondent No.1 in exercise of the powers conferred upon it under Section-259 of the Gujarat Panchayats Act, 1993 ("the Act" for short) to resolve the dispute between the villagers and the beneficiaries of Sipu Dam project at Mukteshwar.
3 Facts of the present case which are briefly stated as under:
3.1 A Resolution dated 7.1.2008 came to be passed by Ranpur Athamnawas Gram Panchayat pursuant to a letter dated 6.1.2007 issued by Deputy Collector, Land Acquisition and Rehabilitations Scheme, Mukteshwar Sipu Project, asking the Gram Panchayat to pass a resolution allotting 45 acres of land from Survey No.2A/1, which is a gaucher land, for the rehabilitation of the affected agriculturists, whose lands have been submerged due to Sipu Project. Accordingly, the panchayat passed a Resolution, being Resolution No.26 dated 7.1.2008 by consensus that the said area of gaucher land can be allotted to the affected agriculturists.
3.2 Some of the villagers were not happy with the said Resolution and, therefore, requested the Sarpanch of Gram panchayat on 25.1.2008 to cancel the said Resolution No.26, which was passed on 7.1.2008. Pursuant to the said representation, another Resolution No.31 was passed cancelling the earlier Resolution No.26 on the ground that it would not be desirable to grant land to the affected persons since the land available for cattle grazing is not sufficient. It was also resolved in the said resolution that the Collector can be requested to grant land in some other villages. The Resolution No. 31 was passed by the Panchayat on 1.2.2008 i.e. within a very short period from passing of the first resolution.
3.3 One Rameshkumar Menghaji Mali, preferred an appeal being Appeal No.7 of 2008, under Section 242 of the Act and challenged the Resolution No. 26 dated 7.1.2008. Similarly, the present appellants, who were beneficiaries of the scheme, also challenged the subsequent Resolution No.31 dated 1.2.2008 by filing an Appeal, being Appeal No. 13 of 2008, under Section 242 of the Act. The Appellate Committee after hearing the appellants in these two appeals, dismissed the Appeal No.7 of 2008 filed by Rameshkumar Menghaji Mali whereas the Appeal No.13 of 2008 filed by the affected persons i.e. present appellants was allowed and held that the Resolution No.31 dated 1.2.2008 was required to be quashed on the ground that the Panchayat has not followed the provisions of Section-97 of the Act as well as Rule-7 and Rule 18 of the Gujarat Panchayat (Procedure) Rules, 1997 ("the Rules for short).
It is pertinent to note at this stage that the appellant of Appeal No.7 of 2008 i.e. Shri Rameshkumar Menghaji Mali (Sundesha) was Deputy Sarpanch of the panchayat and was party in the proceedings undertaken by he panchayat when Resolution No.31 was passed. Though, Resolution No.31 was passed on 1.2.2008 cancelling the earlier Resolution No.26, for the reasons best known to him, he had preferred an Appeal under Section-242 of the Act on 20.10.2008 after a period of more than eight months.
3.4 Since the original petitioners failed in the above appeal proceedings, they approached this Court by way of filing a Public Interest Litigation, being Special Civil Application No.1551 of 2009, and challenged the order passed by the Appellate Committee. By Order dated 20.2.2009, the said petition was disposed of with a direction to the parties to approach the State Government to exercise powers under Section-259 of the Act. Pursuant thereto, the original petitioners approached the respondent No.1-State Government and after hearing the necessary parties, the State Government, has passed a reasoned order dated 1.6.2009 whereby the authority upheld the decision dated 3.11.2008 passed by the Appellate Committee in Appeal No.13 of 2008 which was filed by the beneficiaries and the case of the villagers was not accepted.
3.5 Feeling aggrieved by the said order dated 1.6.2009, the villagers preferred the above referred Special Civil Applications and challenged the said order as well as the order passed by the Committee in Appeals No. 7 of 2008 and 31 of 2008.
3.6 Pursuant to the notice issued in the said Special Civil Applications, the appellants who are respondents No.5 and 6 in the said Special Civil Applications, opposed the petitions by filing an affidavit-in-reply and also produced number of documentary evidence. The learned Single Judge after considering the facts of the case and relevant provisions of the Act and the Rules, came to the conclusion that the panchayat has duly followed the procedure prescribed under Rules 7 and 18 of the Rules read with Section-97 of the Act and therefore upheld that the Resolution No.31 of 2008 dated 1.2.2008 is a legal one and it was ordered to be restored to the file of the panchayat.
3.7 Being aggrieved and dissatisfied with the said judgment and order of the learned Single Judge, the beneficiaries have filed the present appeals under Clause-15 of the Letters Patent.
4 We have heard Mr. J.R. Nanavati, learned Senior Counsel assisted by Mr. Manan Mehta, learned Advocate for the appellants, Ms. Jirga Jhaveri, learned AGP for respondent No.1, Mr. H.S. Munshaw, learned Advocate for respondent No. 2 and Mr. V.C. Vaghela and Mr. P.R. Nanavati, learned Advocates for several respondents who are the villagers of village Ranpur in the respective Appeals.
5 The first contention raised by the appellants is with regard to the breach of procedure prescribed under the Act as well as the Rules committed by the panchayat while passing the Resolution No.31 on 1.2.2008. Section-97 of the Act provides that no resolution of a panchayat shall be modified, amended, varied or cancelled by a panchayat within a period of three months from the date of the passing thereof, except by a resolution supported by two-thirds of the whole number of members of such panchayat. Chapter-II of the Rules deals with the meeting of panchayat. Rules 3, 4 and 5 deal with time, place and agenda of meetings, Notice of Ordinary Meeting, Notice of special meeting, etc. Rule 6 provides that a notice stating the date, time and place of every meeting of the panchayat and of the business to be transacted, thereat, shall be displayed on the notice board at the office of the panchayat. Rule-7 deals with mode of delivery of notice. Rule-17 provides that except with the permission of the presiding officer, no business, which is not entered in the agenda, shall be transacted at any meeting and the business to be transacted at any meeting shall be taken up in the core in which it is entered in the agenda. However, it provides that in granting permission for priority for transacting any business, the presiding officer shall be guided by the majority of votes for or against the motion moved thereof.
6 Now looking to the documentary evidence which are produced along with the petitions, such as, extracts of agenda book dated 28.1.2008, by which a meeting was convened on 1.2.2008, one of the subjects of the agenda is "to reconsider the proceedings undertaken by the panchayat on 7.1.2008." It is clear that, this agenda does not categorically mention about the Resolution No.26, which was passed on 7.1.2008, was under consideration for cancelling the same. As stated here-in-above, the provisions of Section-97 read with Rules-7 and 18 of the Rules, we are of the opinion that, the panchayat had not followed the procedure as prescribed under the law.
7 As per Section-97 of the Act is concerned, ordinarily, the resolution should not be cancelled within a period of three months from the date of passing of the same, except, by a resolution supported by two-thirds of the whole number of members of such panchayat. It is an admitted position that the second Resolution was passed within a period of three months, that too, without following the Rules and particularly Rule No. 7 and Rule No. 18 of the Rules.
Second contention raised by the learned counsel for the appellants is with regard to non-dealing with the provisions of Section-108 of the Panchayat Act by the learned Single Judge. It was submitted that, though, the appellants along with their affidavit-in-reply, produced an Order dated 27.2.2009, passed by the Collector, Banaskantha, by which the Collector had granted the disputed land for the affected persons, however, the same has not been dealt with by the learned Single Judge. He has submitted that under Section-108 of the Act, the State Government has power to resume any open site or waste, vacant or grazing land required by it for any public purpose. Section-108- of the Act reads as under:
"108.
Government may vest certain lands in panchayat:
(1) For the purpose of this Act, the State Government may subject to such conditions and restrictions, as it may think fit, to impose, vest in a panchayat open sites, waste, vacant or grazing lands or public roads, streets, bridges, ditches, dikes and fences, wells, river-beds, tanks, streams, lakes, nallas, canals, water-courses, trees or any other property in the village vesting in the Government.
(2) Subject to any conditions and restrictions imposed by the State Government under sub-section (1) and with the previous sanction of the Collector, a panchayat may discontinue or stop up any such public road or street vested in it by the State Government but which is no longer required as public road of street and may lease or sell any such land therefore used for the purposes of such public road or street:
Provided that one month before it is decided to stop up or discontinue such public road or street, the Sarpanch shall, by notice signed by him and affixed in the part of the public road or street which is proposed to be discontinued or stopped up, and published in such other manner as is prescribed, inform the residents of the village of the said proposal and consider any objections in writing made thereto. The notice shall indicate the alternate route, if any which it is proposed to provide or which may already be in existence.
(3) Whenever any public road or street or any part thereof has been so discontinued or stopped up, reasonable compensation shall be paid to every person who was entitled to use such road or street or part thereof, otherwise than as a mere member of the public, as a means of access to or from his property and has suffered damage from such discontinuance or stopping up, and the provisions in the Bombay Highway Act, 1955 (Bom. LV of 1955) in relation to the assessment apportionment, and payment of compensation shall, mutatis mutandis, apply thereto as they apply in relation to the closure of a highway under section 52 of that Act.
(4) Where any open site or waste, vacant or grazing land vesting in Government, has been vested by Government in a panchayat whether before or after the commencement of this Act, then it shall be lawful for the State Government to resume at any time such site or land, if it is required by it for any public purpose:
Provided that in case of any improvement of such site or land made by the panchayat or any other person, the panchayat or person, as the case may be, shall be, entitled to compensation equal to the value of such improvement and such value shall be determined in accordance with the provisions of the land Acquisition Act, 1894 (! of 1894)."
9 In support of his contention, learned Advocate Mr. J.R. Nanavati, Senior Counsel for the appellants has relied upon a decision of the Division Bench of this Court in the case of Bhupatbhai Oghadbhai & Ors. Vs. State of Gujarat & Ors., as reported at 37 (1) GLR, 600 and submitted that the Collector has power to resume the grazing land for public purpose. In the said case it has been held as under:
" Under Sec. 96(4) of the Gujarat Panchayats Act, 1961, where any open site or waste, vacant or grazing land, which is vested with the Government, has been vested by it in a Panchayat, then it is lawful for the State Government to resume that land if required by it for any public purpose. This is a case of cattle versus human beings. Where the land is not abundant, but there are a large number of landless people who do not have any place to stay or to cultivate, it would be in the public interest to give land to them even at the expense of a part of grazing land. This is precisely what has been done in the present case. "
It is to be noted that the provisions of Section-108 (4) of the Gujarat Panchayats Act, 1993 is pari materia to the provisions of Section 96(4) of the Gujarat Panchayats Act, 1961.
10 Learned Advocate Mr. Nanavati has also relied upon a judgment of the Apex Court in the case of State of Jharkhand and Ors. Vs. Pakur Jagran Manch & Ors., as reported at AIR 2011 SC 675. In the said case, part of gochar land was allotted for construction of hospital which was challenged by the villagers. It was held in the said case that the gochar land can be deserved with the previous sanction of the State for a public purpose. The plea taken by the parties that once a gochar land is always a gochar land and there is no power in any one at any time to alter its status as not gochar land, was not accepted by the Apex Court.
11. On the other hand, Mr. V.C. Vaghela and Mr. P.R. Nanavati, learned Advocates appearing for the original petitioners - villagers have supported the decision of the learned Single Judge and have tried to establish that the panchayat had followed Rules 7 and 18 of the Rules read with Section-97 of the Act. It was argued that all the members remained present on 1.2.2008 in the meeting and had unanimously passed the Resolution No. 31.
12 We are of the opinion that Mr. J.R. Nanavati, learned Senior Advocate for the appellants is right in submitting that the provisions of Section-108 of the Act would be applicable in the facts and circumstances of the present case. It is an admitted position that under Section-108 (1) of the Act, Government has power to vest certain open sites, vacant or grazing land or public roads, streets, bridges, ditches, etc. in panchayat subject to such conditions and restrictions the State Government may think fit to impose. Under Section-108(4) of the Act, the Government has power to resume such site or land which has been vested in the panchayat for any public purpose. In the present case, the Collector has passed an Order on 27.2.2009 under Section 108(4) of the Act and has resumed the gaucher land in dispute in favour of the project affected persons and appellants of these appeals. While passing the Order dated 27.2.2009, the Collector has also considered the Resolutions No.26 and 31 passed by Village Panchayat and after considering the same, the Collector thought it fit to grant the land in favour of the affected persons including the present appellants. It is also to be noted that the respondent No.1 while considering the application under Section-259 of the Act, as directed by the High Court, has also considered the said order dated 27.2.2009 passed by the Collector exercising powers under Section 108(4) of the Act and came to the conclusion that the proceedings undertaken by the Panchayat while passing the Resolution No. 31 was not a legal one and when the Collector has exercised its power under Section-108(4) of the Act after considering the issue in dispute, it was not necessary for the State Government to allow the Revision Application in favour of the original petitioners - villagers.
It is pertinent to note that the Order dated 27.2.2009 passed by the Collector under Section-108(4) of the Act by which the land has been resumed to the affected persons is not challenged by the original petitioners or by panchayat before any higher forum.
13 In view of this overall factual as well as legal aspects of the matter, we are of the opinion that the Order dated 1.6.2009 passed by the respondent No.1 - State in Revision Application No. 12 of 2009 confirming the Order dated 3.11.2008 by the Appellate Committee in Appeal No.7 of 2008 and 13 of 2008 is required to be confirmed and the order passed by the learned Single Judge dated 30.9.2010 passed in Special Civil Applications No. 6583 of 2009 and 6541 of 2009 is required to be set aside.
14 In the result, both the appeals are allowed. The order dated 30.9.2010 passed by the learned Single Judge in Special Civil Applications No. 6583 of 2009 and 6541 of 2009 is set aside and confirmed the Order passed by the respondent No.1-State on 1.6.2009 in Revision Application No.12 of 2009. No order as to costs.
(V.M.
SAHAI, J.) (A.J.
DESAI, J.) pnnair Top