IN THE HIGH COURT OF GUJARAT AT AHMEDABAD WRIT PETITION (PIL) No. 155 of 2011 For Approval and Signature:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= CHAUDHARY LAXMANBHAI PARTHIBHAI & 15 - PETITIONER Versus STATE OF GUJARAT NOTICE THRO SECRETARY & 3 - RESPONDENT ========================================================= Appearance :
MR SP MAJMUDAR for PETITIONER : 1 – 16. MR PP MAJMUDAR for PETITIONER : 1 - 16.
MR PK JANI, GOVERNMENT PLEADER for RESPONDENT : 1, None for RESPONDENT : 2, MR PERCY KAVINA, SR.ADVOCATE with MR KISHORE PRAJAPATI for RESPONDENT : 3, MR YV VAGHELA for RESPONDENT : 4, ========================================================= CORAM :
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 06/08/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA) By way of this petition under Article 226 of the Constitution of India in the nature of a Public Interest Litigation, the petitioners who are residents of village Mahi, Taluka Vadgam, District Banaskantha have prayed for a writ of mandamus upon respondent no.2 Collector, quashing and setting aside the impugned order dated 18th January 2011 allotting a portion of 'gauchar' land in favour of respondent nos.3 and 4 and have also prayed for appropriate directions to the respondent authorities to keep the land bearing Survey No.234/A/1 paiki of village Mahi, Taluka Vadgam, District Banaskantha as village 'gauchar' land.
The case made out by the petitioners in this petition can be summarised as under :
(1) Petitioners are residents of village Mahi, Taluka Vadgam, District Banaskantha and earn their livelihood by doing agricultural operations.
(2) The land in question which is the subject matter of dispute belongs to Mahi Gram Panchayat as reflected from 7/12 extract of the revenue records.
(3) On 30th March 2010, the Sarpanch of the Panchayat passed an illegal resolution stating that the Panchayat has no objection if part of the land in question is allotted to the private respondents herein by the State Government.
(4) As the said resolution was passed illegally without taking into consideration the repercussion of the same, the petitioners and other villagers preferred a representation dated 16th July 2010 to Mahi Gram Panchayat to review its decision dated 30th March 2010.
(5) The Panchayat accordingly reviewed its earlier decision by passing an appropriate resolution dated 20th July 2010 stating that as the land in question is a 'gauchar' land the Panchayat has objections and do not agree for the allotment of land to private respondents.
(6) Record reveals that respondent nos.3 and 4 challenged the said decision of the Gram Panchayat before the appellate committee who, vide order dated 3rd September 2010, allowed the appeal and set-aside the resolution dated 20th July 2010 passed by the Mahi Gram Panchayat.
(7) Against the said decision of the appellate committee, the Panchayat preferred a revision application before the State Government, which came to be allowed vide order dated 29th September 2011.
(8) According to the petitioners, as on today, the second resolution passed by the Panchayat is in force and, therefore, it could be said that the Panchayat has not consented for allotment of 'gauchar' land by the State Government in favour of private respondents.
(9) On 9th August 2010, the petitioners and other villagers of village Mahi requested respondent no.2 that no 'gauchar' land be allotted to private respondents as there are around 3,961 cattle in the village and the area of 'gauchar' is utterly inadequate. It was further pointed out that the private respondents in whose favour the land is being allotted are in fact not affected persons and it is an attempt to grab the land, whereby the land would ultimately go to the builders and few influential persons of the area.
(10) On 25th August 2010, the respondent no.2 informed the private respondents that they would have to select land from some other village and not from the village Mahi.
(11) It is also the case of the petitioners that respondent no.2 was informed by the Panchayat on 28th September 2010 that it had already preferred a revision application before the State Government against the order of the appellate committee.
(12) On 12th August 2010, the petitioners preferred a detailed representation to the respondent no.2 herein requesting not to allot the land in question to the private respondents. It was pointed out that there were various other waste lands which could be given to the private respondents and the land might not be given from 'gauchar' land of village Mahi.
(13) On 16th September 2010, all the villagers of village Mahi lodged their objections before the respondent no.2 against the allotment of the land to the private respondents.
(14) It is the case of the petitioners that inspite of the aforesaid facts, the respondent no.2 – Collector, vide order dated 18th January 2011, allotted the land in question to the private respondents without considering any of the objections given by the petitioners and the Gram Panchayat.
(15) Against the aforesaid order of the respondent no.2, some of the petitioners preferred Special Civil Application No.2102 of 2011 before this Court, which was heard by a learned Single Judge and the learned Single Judge, vide order dated 25th July 2011, allowed the same quashing and setting aside the order passed by the Collector dated 18th January 2011.
(16) Against the said order, the private respondents herein preferred Letters Patent Appeal No.1291 of 2011, which was allowed on the ground that the issue involved in the petition was in the realm of a public interest and, therefore, the learned Single Judge had no jurisdiction to pass the order. However, the LPA Bench, while allowing the appeal, clarified that they had not gone into the merits of the matter and the order would not stand in the way of the original writ-petitioner in filing a fresh Public Interest Litigation in accordance with law. Accordingly, the present petition has been once again preferred in the nature of a Public Interest Litigation.
In the present petition, the challenge is to the order of respondent no.2 – the Collector dated 18th January 2011 allotting 'gauchar' land in favour of the respondent nos.3 and 4.
Notice was issued on the respondents and at the time of issuance of notice, this Court also thought fit to pass an order of status quo as to the nature and character of the property and the possession, for a period of fortnight or till the disposal of the application whichever would be earlier with a liberty to apply for extension.
The matter, thereafter, was heard from time to time with extension of the interim order. Respondents have appeared and have opposed this petition by filing affidavit-in-reply.
I. Stand of respondent nos.1 and 2 :
Originally Mahi village was of 'Jagiri' and the land of Survey No.234 was called as open 'Darbari' land. That in the year 1954, because of Jagiri Abolition Act, the said land of Survey No.234 became Government land.
Subsequent to the aforesaid, as per the Notification dated 13th January 1956 of the State of Bombay, the aforesaid land was vested with the Gram Panchayat, Mahi. However, the aforesaid land was not assigned as 'gauchar' land as per the provisions of Section 38 of the Bombay Land Revenue Code and Rule 73 of the Gujarat Land Revenue Rules. However, from the olden days, the aforesaid land was called as 'Chara' and, it was used as 'gauchar' but it was in the ownership of the State Government.
By Government Resolution dated 11th June 1979, the State Government in its Irrigation Department, for the purpose of rehabilitation, declared to give land in place of land to the affected persons due to irrigation yojana. Apropos the same, therefore, as per the Mukteshwar Reservoir Project, 30% land of respondent no.3 and 100% land of the respondent no.4 was acquired and, therefore, the respondent nos.3 and 4 became entitled to get the land as per the aforesaid rehabilitation policy.
To give benefit to the affected persons, as per the rehabilitation policy, the Collector, the respondent no.2 herein, as per the provisions of Section 108(4) of the Bombay Land Revenue Code had resumed 5-Acres of land out of Survey No.234/A/1 p-8/p-2 from the Gram Panchayat vide Collector's Office Order No.B-jmn-4-sipu yojana/transfer/mahi/vashi/244, 248 dated 18th January 2011 for further allotment to the affected persons of Mukteshwar Reservoir Project.
The allotment of the land by way of rehabilitation is absolutely in accordance with the provisions of law. Section 108(4) of the Gujarat Panchayat Act empowers the concerned Collector to resume the land for public purpose. So far as the contention of the petitioner to the effect that the Collector has allotted the land without permission from the Gram Panchayat is concerned, reliance has been placed on the judgment of the Hon'ble Supreme Court reported in AIR 1996 SC 2578, wherein the Hon'ble Supreme Court has ruled that when the waste land or open site or vacant land or grazing land vested in the State was sought to be resumed from Gram Panchayat by the Collector for any laudable public purpose, notice to the villagers is not necessary.
The land which is sanctioned for affected persons of Mukteshwar Reservoir Project by the Collector, Banaskantha has not been actually allotted to any affected persons till date. However, proposal has been sent to the Additional Collector (Irrigation), North-Central Gujarat, Gandhinagar for permission to allot the land to the identified project affected persons which is yet awaited. So far as the contention of the petitioners to the effect that the District Collector has given a choice to the private respondents saying that they will have to select some other village and not Mahi village is concerned, the District Collector had sought information from the District Agricultural Officer through the Deputy Collector, Land Acquisition and Rehabilitation, Sipu Yojana, Palanpur. Report was sent by the District Agricultural Officer to the effect that the other villages of the Vadgam taluka do not possess any agriculture potentiality and as Mahi village was having agricultural potentiality, land of Mahi village is selected for allotment to the affected persons.
So far as contention of the petitioners to the fact that though the subsequent resolution dated 20th July 2010 passed by the Gram Panchayat was confirmed in Revision by order dated 29th September 2011 by the additional Secretary (Appeals), the Collector, the respondent no.2 herein, proceeded to allot the land in favour of the respondent nos.3 and 4 is concerned, it is submitted that the Collector has passed an order to resume the land for rehabilitation purpose on 18th January 2011 but so far it has not been allotted to any other persons. The aforesaid facts clearly indicate that order of the Collector was much before the order passed by the Additional Secretary (Appeals) in revision. Apropos the same, therefore, it is needless to state that the order passed by the learned Collector is independent as per the powers given under the Gujarat Panchayat Act and it has nothing to do with the resolution of the Gram Panchayat.
So far as the contention raised by the petitioners in the petition to the effect that in the Village Form No.6 the land is shown as 'gauchar' land is concerned, it is stated that the aforesaid contention is incorrect and misleading. As it appears from the plain reading of the aforesaid Village Form No.6, it has been clearly stated therein that 'used for gauchar land' and 'not gauchar land'. There is clear distinction between the aforesaid two sentences.
Village Form No.6 Note No.453 clearly states that the property of Survey No.234 has been assigned to Mahi Village Panchayat only to enjoy occupancy right and that too conditionally, and further it is clearly mentioned that without any compensation it can be taken back. Panchayat has been assigned this property with a condition that it should keep it in good condition.
As per the Government Resolution dated 20th May 1954 passed by the old State of Bombay, panchayats are expected to carry out the fencing of area, to grow proper type of grass, to provide for rotational grazing act etc. but panchayat has not done any such work for public purpose.
The Government Resolution dated 20th May 1954 passed by the old State of Bombay wherein it has been clearly stated that in village where the total area assigned for grazing is inadequate, attempt should be made to make up the deficit by assigning 'uncultivable' waste land for this purpose. It is stated that the said land is cultivable and the District Agricultural Officer has also opined that it is cultivable.
The Panchayat has not taken any steps to improve the grazing land. The land is cultivable and suitable for agriculture.
When the aforesaid land was not assigned as 'gauchar' land as per the provisions of law and when there is no deeming fiction in the Act to the effect that if the land is being used for the purpose of 'gauchar' it will automatically became a 'gauchar' land, then in that case no question would arise for restricting the power of the Collector under Section 108(4) of the Gujarat Panchayat Act and, therefore, the present writ is devoid of any substance and deserves to be dismissed with heavy costs.
By way of further affidavit-in-reply filed by the respondent no.2, conflict of decisions between the order passed by the Additional Secretary (Inquiry), Panchayat, Rural Housing and Rural Development Department dated 29th September 2011 passed in Revision Application in exercise of powers under Section 259 of the Gujarat Panchayat Act and the order passed by respondent No.2 – the Collector dated 18th January 2011, allotting land in favour of private respondents has been explained. The stand taken in the said further affidavit-in-reply is as under :
The proposal was received from the Deputy Collector, Land Acquisition and Rehabilitation, Sipu Project, Palanpur dated 11th May 2010 and a letter was also received from the Deputy Collector on 26th May 2010. Thereafter, letter of Additional Collector, Irrigation dated 19th January 2009 was taken into consideration. It was stated that after considering all relevant aspects and considering the Resolution No.3/7 dated 30th March 2010 and taking into consideration Resolution No.7 dated 20th July 2010 whereby the earlier resolution was cancelled, the same was set aside by the District Panchayat Appeal Committee by its order dated 3rd September 2010. It is stated that the order was passed to the effect that deleting 5 acres of land from land used as 'gauchar' was made available for rehabilitation purpose of the affected people of Mukteshwar Yojana for the agricultural purpose and by this order dated 18th January 2011 the land of 5 acres of Survey No.234/A/1 was deleted from the land used as 'gauchar' land and made available for the rehabilitation purpose of affected people of Mukteshwar Yojana and the same land was ordered to be transferred in the name of Deputy Collector, Sipu Yojana, Palanpur with certain conditions.
By order dated 18th January 2011 pursuant to the proposal dated 11th May 2010 forwarded by the Deputy Collector, Land Acquisition and Rehabilitation and considering letter dated 26th May 2010 addressed by the Deputy Collector, Palanpur Sub- Division and considering the letter dated 19th January 2009 of Additional Collector, the order was passed for the benefit of persons displaced in Mukteshwar Project.
It was not within the knowledge of the Additional Secretary (Inquiry), Panchayat, Rural Housing and Rural Development Department that Resolution No.3/7 dated 30th March 2010 which was later on cancelled by Resolution No.7 dated 20th July 2010 and thereafter, in appeal proceedings Resolution No.3/7 dated 30th March 2010 was restored by Appellate Committee by order dated 3rd September 2010 which has culminated into final order deleting the land used as 'gauchar' land of Survey No.234/A/1 from land used as 'gauchar' and was made available for the purpose of agriculture for the affected people of Mukteshwar Project.
Pursuant to the order dated 18th January 2011 of deleting 5 acres land from land used as 'gauchar' land and making it available for the purpose of agriculture for the affected people of Mukteshwar Yojana, the land was transferred in favour of Deputy Collector, Sipu Project, Palanpur and possession was also taken over by Deputy Collector on 22nd February 2011.
In between, since the order of transfer was passed, the Deputy Collector, Land Acquisition and Rehabilitation, Sipu Project, Palanpur requested the Additional Collector, Irrigation, North and Central, Gujarat State for approval of grant of land in favour of respondent nos.4 and 5 and the same is pending for consideration. Hence, the land in question is not transferred to any affected persons till this date.
Panchayat has not been joined as a party respondent in the matter. So far as the question regarding the Collector taking a different view is concerned, it is stated that the order of deleting land used as 'gauchar' land was passed by respondent no.2 on 18th January 2011. However, the order by the Additional Secretary (Inquiry), Panchayat, Rural Housing and Rural Development Department was passed on 29th September 2011 in exercise of powers under Section 259 of the Gujarat Panchayat Act after 8 months of passing of the order passed by respondent no.2 i.e. 18th January 2011. In the proceeding before the Additional Secretary (Inquiry), Panchayat, Rural Housing and Rural Development Department, the Collector or Deputy Collector was not joined as a party respondent. Therefore, it was not brought to the notice of Deputy Collector or Collector that relying upon Resolution No.3/7 further orders were passed on 18th January 2011 and land was ordered to be transferred in the name of Deputy Collector, Land Acquisition and Rehabilitation by order dated 18th January 2011 by deleting 5 acre land from land used as 'gauchar' land and further making it available for the purpose of agriculture for the affected people of Mukteshwar Yojana and that possession was also taken over by Deputy Collector, Land Acquisition and Rehabilitation. Proposal was also sent by Deputy Collector, Land Acquisition and Rehabilitation to the Additional Collector, Irrigation requesting for approval of grant of land which is still awaited.
II. Stand of Respondent No.4 :
The present petition is a Public Interest Litigation which is required to be filed strictly in accordance with 'the High Court of Gujarat (Practice and Procedure for Public Interest Litigation) Rules, 2010' in the format prescribed under the said Rules. It is submitted that the present petition is not filed in accordance with the PIL Rules and, therefore, the present petition may be rejected summarily.
By order dated 18th January 2011 of the Collector, Banaskantha, no rights guaranteed to the petitioners either under the Constitution of India or under any other law have been violated and, therefore also the present petition is not maintainable and liable to be rejected summarily with cost.
The present petition is not a genuine 'Public Interest Litigation' but the same is a vexatious proceeding filed for ulterior motive of extorting money from a person who is likely to get the benefit under Rehabilitation Policy of the Government after long period and whose land has been acquired for project of public purpose long back and now when his turn for allotment came hurdles are created by the petitioners and their associates under the beautiful wail of public interest and, therefore also the Hon'ble Court rejected the petition with exemplary cost.
The present petition is filed on the misconception that the land in question is the assigned pasture land for free grazing. It was submitted that the land in question is not assigned as 'gauchar' land under the provisions of the Bombay Land Revenue Code read with the Gujarat Land Revenue Rules,
Revenue Rules contemplates that for assigning any land as 'gauchar' land, there has to be an order recorded in writing by the Collector of assignment of land. In the instant case, no such order was recorded in writing by the Collector under Rule 73 of assigning the land in question (Survey No.234/A/1 paiki-8/paiki- 2) as 'gauchar' land. It was stated that any open land cannot become the 'gauchar' land automatically even though such open land was popularly known as 'chara' or some cattle were grazing in such open land.
In the earlier petition (i.e. Special Civil Application No.2102 of 2011), the affidavit-in-reply was filed by the Deputy Collector on 28th March 2011 (subsequently substituted by another affidavit) wherein it was clearly stated that the land in question was not assigned as 'gauchar' land under the provisions of the Bombay Land Revenue Code and, therefore, the land in question cannot be treated as 'gauchar' land.
Prior to this petition, the petitioner nos.1,2 and 3 had filed petition being Special Civil Application No.2102 of 2011 with respect to the same subject matter, wherein the deponent had filed affidavit-in-reply pointing out that those petitioners (i.e. petitioner nos.1 to 3 herein) are set up persons by others to create hurdles in availing benefit of rehabilitation policy. The said petition was allowed by the learned Single Judge vide order dated 25th July 2011. Against the said order respondent no.4 filed Letters Patent Appeal No.1291 of 2011 which was allowed by learned Division Bench of this Hon'ble Court vide order dated 9th November 2011 whereby the order dated 25th July 2011 of the learned Single Judge was set aside with clarification that the said order would not stand in the way of original writ petitioner in filing fresh PIL in accordance with law. Thereafter, the present petition is filed by those three petitioners as well as other persons (i.e. petitioner nos.4 to 16). Most of them are got up person to exert pressure on beneficiaries for extorting money/land from respondent no.4. Thus, the present petitioners have not approached this Hon'ble Court with clean hands but have approached with an ulterior motive of pressurizing respondent no.4 for succumbing to their illegal, unjust and unreasonable demand of giving 30% land or equivalent amount and, therefore also the Hon'ble Court may be pleased to reject the present petition summarily with cost.
Petitioner nos.1 and 4 and their associates have demanded 30% of land from the final allotment or in lieu thereof demanded equivalent amount of market value for not creating any obstructions. It is stated that such demand was conveyed to respondent no.4 through the deponent by petitioner no.1 Shri Laxmanbhai Parthibhai Chaudhari and petitioner no.8 Shri Kesharbhai Parthibhai Chaudhari (both brothers). It is further stated that petitioner no.1 is serving with the forest department and his brother Kesharbhai Parthibhai (i.e. petitioner no.8) is a highly influential person of the area and is commanding political power. Petitioner no.8 is a Chairman of APMC, Vadgam, and also Chairman of Taluka Kharid Vechan Sangh, Vadgam Taluka and the Director of Banaskantha District Central Co-op Bank. It is stated that both the petitioners are also dealing in land business by way of brokerage and/or purchase and sell of land as side business. It is stated that 30% share of land or equivalent amount was demanded or else, threatened to face dire consequences/obstruction in allotment and in taking actual possession of the land in question.
By this writ petition and the earlier petition, it is clear that petitioner no.1 and 8 along with their got up persons are creating hindrances in availing benefit of the Rehabilitation Policy to respondent no.4. It is stated that the petitioners have taken refuse in respondent no.4 to succumb to their illegal, unjust demand as a challenge to their uncrowned authority at local level and, therefore, the petitions are filed at belated stage to teach a lesson to respondent no.4.
In past also the Collector had resumed land from the Panchayat to be allotted to the individuals for different purposes but at no point of time the petitioners had raised any objection against such resumption/allotment. For the first time, the objections are raised by the petitioners at a belated stage i.e. only after unjust demand of petitioner no.1 and 8 was not satisfied by respondent no.4. Thus, the act of the petitioners of targeting respondent no.4 speaks volumes about the malicious attitude of the petitioners and, therefore, the present petition deserves to be rejected with costs.
The total area of open vested land of Survey No.234/A/1 paiki-8 is H-24-11-38-sq.meter (A-60-00-Guntha). It is stated that out of the said land, the Collector has resumed only A-5- 00-Guntha land (H-2-02-34 sq.meter) for rehabilitation purposes. Thus, as on date there is about A-55-00-Guntha open Government land available with the Village Panchayat which has vested in Panchayat. Thus, no scarcity of the land is created by resumption of land for rehabilitation purposes. It is denied that the land in question is 'gauchar' land.
The land in question is an open Government land which was vested into the Village Panchayat Mahi conditionally for the use of village people as open Government waste land and not vested or assigned as a 'gauchar' land. Even today also the said land is shown as open Government land vested in the Panchayat.
Taking into consideration the case of the petitioners and the stand of the respondents, the picture that emerges could be summed up thus :
(1) For the purpose of Mukteshwar Reservoir Project 30% land of respondent no.3 and 100% land of respondent no.4 was acquired and, therefore, both these respondents became entitled to get the land in the alternative as per the rehabilitation policy of the State Government as prescribed under the Government Resolution dated 11th June 1979.
(2) The Government decided to allot a portion of land at village Mahi in favour of respondent nos.3 and 4 which, according to the petitioners, is a 'gauchar' land.
(3) First in point of time a resolution came to be passed by the Mahi Gram Panchayat resolving that the Panchayat had no objection if the land in question was allotted to the private respondents by the State Government. The said resolution was passed on 30th March 2010.
(4) In light of few representations preferred by the petitioners and other villagers to the Mahi Gram Panchayat, the Panchayat decided to review its earlier decision, more particularly, taking into consideration the number of cattle in village.
(5) The earlier resolution dated 16th July 2010 was taken in review and was substituted by a fresh resolution dated 20th July 2010 resolving that 'gauchar' land may not be allotted by the State Government to the private respondents.
(6) The private respondents herein challenged the resolution of the Mahi Gram Panchayat dated 20th July 2010 before the Appellate Committee of the Panchayat and the Appellate Committee of the District Panchayat, Banaskantha allowed the said appeal and set-aside the resolution passed by the Mahi Gram Panchayat, by which it was resolved not to agree to allot the land to private persons from the 'gauchar'.
(7) Being aggrieved and dissatisfied with the order passed by the Appellate Committee, the Panchayat preferred revision application before the State Government.
(8) It appears from the record that before the revision application preferred by the Panchayat could be heard by the State Government, the Collector – respondent no.2 proceeded to pass an order of allotment of land dated 18th January 2011 in favour of respondent nos.3 and 4.
(9) After the order of the Collector dated 18th January 2011 allotting the land in favour of respondent nos.3 and 4, the revision application which was preferred by the Panchayat before the State Government came up for hearing before the Secretary (Inquiry), Panchayat, Rural Housing and Rural Development Department. The Secretary, Panchayat Department, vide order dated 29th September 2011, allowed the revision application setting aside the order passed by the Appellate Committee upholding Resolution No.7 dated 20th March 2010 of the Gram Panchayat, whereby it was resolved not to agree for allotment of land in favour of respondent nos.3 and 4.
(10) It appears that between 18th January 2011 and 29th September 2011, one more development took place. After the order of the Collector dated 18th January 2011, the same was challenged by the petitioners by way of Special Civil Application No.2102 of 2011. The learned Single Judge of this Court vide order dated 25th July 2011, allowed the petition and set-aside the order passed by the Collector dated 18th January 2011. Against the said order passed by the learned Single Judge, Letters Patent Appeal was preferred by respondent nos.3 and 4. The said appeal was allowed on 9th November 2011 on the ground that the learned Single Judge could not have set-aside the order of the Collector allotting the land in favour of respondent nos.3 and 4 as the petition before the learned Single Judge was in the nature of a Public Interest Litigation and, therefore, the learned Single Judge could not have assumed jurisdiction to take up such a petition for hearing. However, while allowing the appeal, liberty was reserved for the original petitioners to file a fresh Public Interest Litigation in accordance with law. Under these set of facts and circumstances, this Public Interest Litigation has been preferred.
III. Contentions on behalf of the Petitioners :
Mr.S.P.Majmudar, learned counsel for the petitioners vehemently submitted that respondent no.2 gravely erred in resuming 'gauchar' land vesting in the Panchayat without following proper procedure. He submitted that the land was allotted to respondent nos.3 and 4 before resumption and that, therefore, the entire action was illegal.
Counsel further submitted that considering the cattle population of the village, decision to allot 'gauchar' land in favour of respondent nos.3 and 4 was wholly unjustified and arbitrary. According to the counsel, if at all the Government wanted to allot land in favour of respondent nos.3 and 4 as per their rehabilitation policy, then any other land could have been allotted but not 'gauchar' land. He submitted that the Government has prescribed a minimum ratio of 'gauchar' land to cattle population which, in the present case, has not been maintained. Earlier, the Gram Panchayat had resolved that they have no objection if the land is allotted in favour of respondent nos.3 and 4 but, at a later stage having realized the consequences of such decision, the earlier decision of the Panchayat was taken in review and it was, thereafter, resolved that the Panchayat shall not agree to allotment of land in favour of respondent nos.3 and 4.
Our attention was drawn to the decision of the Apex Court in the case of State of Jharkhand and others v/s. Pakur Jagran Manch and others, reported in (2011)2 SCC 591, wherein the Apex Court was of the opinion that de-reservation of 'gauchar' land should only be in exceptional circumstances and for valid reasons. It was further observed that when the 'gauchar' land is not a Government land but is village common land vesting in the villagers and not the Government, the consent of villagers in whom the land vests shall have to be obtained before diversion of use of 'gauchar' land.
Mr.Majmudar vehemently submitted that as per the State Government Circular dated 30th December 1988 for preservation of the 'gauchar' land for every 100 head of cattle 40 acres of land is required to be assigned for 'gauchar' land and if the land is forest land, then in that case, per 100 head of cattle 20 acres of land is required to be assigned as 'gauchar' land. According to Mr.Majmudar, there are in all 3,961 cattle in the village and considering the norms fixed by the State Government as such there is a requirement of 700 hectares of land for 'gauchar'. As against which, at present there is only 24 hectares of land bearing Revenue Survey No.234/A/1 and out of which again further land is sought to be taken away and converted into 'gamtal' land for public purpose. According to Mr.Majmudar if it is the policy of the Government, then the Government is obliged to follow the policy and cannot carve out an exception like in the present case.
IV. Contentions on behalf of Respondent No.2 – Collector :
Mr.P.K.Jani, learned Government Pleader appearing for respondent no.2 vehemently submitted that in the first instance a Gram Panchayat has no powers or any authority in law to object resumption of Government 'gauchar' land vested with the Panchayat for any other public purpose. Mr.Jani submitted that if Section 108(1) and Section 108(4) are properly construed along with Section 110(2), it leaves no room for doubt that the vesting of land by Government in duly constituted panchayat is nothing more than transfer of right to possession of land and, even when the panchayat is to transfer or deal with such property, previous sanction of the competent authority is required. Section 108(4) clearly provides that it shall be lawful for the State Government to resume, at any time, such open site or waste, vacant or grazing land which has been vested by it in panchayat. According to Mr.Jani, if the land when vested by the State Government in panchayat was grazing land, it could be resumed at any time for public purpose.
Mr.Jani further submitted that the order passed by the Collector dated 18th January 2011 is in substance an order by the State Government. According to Mr.Jani, as per Section 37 of the Bombay Land Revenue Code, all lands wherever situated are declared to be, with all rights in or over the same or appertaining thereto, the property of the Government and it shall be lawful for the Collector, subject to the orders of the State Government, to dispose of them in such manner as he may deem fit. Thus, according to Mr.Jani, the Collector exercised powers delegated by the State Government at the time of passing the order of allotment in favour of respondent nos.3 and 4. Under such circumstances, it could be said that it was an order passed by the State Government and, therefore, the Secretary of the Panchayat Department could not have observed anything contrary to what the Collector has said in his order dated 18th January 2011. The sum and substance of the argument is, that while passing the order, the Secretary of the Panchayat Department ought to have kept in mind one thing that the order of allotment was by the State Government and, therefore, being an officer of the State Government, could not have observed anything contrary.
Mr.Jani submitted that as a matter of fact, the issue before the Secretary of the Panchayat Department while hearing the revision application preferred by the petitioners was very limited. The issue was, as to whether the Gram Panchayat could have taken its earlier decision in review and passed a fresh decision resolving that the Panchayat has objection in allotment of 'gauchar' land.
According to Mr.Jani, the moot question in this petition is, as to whether any permission or sanction of the Gram Panchayat was at all necessary in the present case before passing the order of allotment of a part of 'gauchar' land by the Collector. Mr.Jani submitted that the law in this regard is very well-settled that before resumption of the grazing land for any other public purpose consent of the Panchayat is not at all necessary or sine qua non before the actual order of allotment is passed. Under such circumstances, the Secretary of the Panchayat Department ought to have confined its jurisdiction only to a limited issue as regards the legality and validity of the resolution.
Mr.Jani submitted that if the order of the Collector dated 18th January 2011 is examined independently of the order subsequently passed by the Secretary of the Panchayat Department, then no illegality could be said to have been committed by the Collector in passing such an order.
Mr.Jani submitted that there is a basic fallacy in the contention of Mr.Majmudar that the subsequent order passed by the Secretary of the Panchayat Department allowing the revision application of the petitioners would govern the field and it could be said that the allotment has been cancelled.
V. Contentions on behalf of Respondent Nos.3&4:
Mr.Percy Kavina, learned senior counsel appearing for the private respondents vehemently submitted that this petition in the nature of a Public Interest Litigation may not be entertained as the same is not strictly in accordance with “the High Court of Gujarat (Practice and Procedure for Public Interest Litigation) Rules, 2010”.
According to Mr.Kavina, the present petition is not a genuine public interest litigation but the same is a vexatious proceeding filed for ulterior motive of extorting money from a person who is likely to get benefit under rehabilitation policy of a Government after a long period and whose land had been acquired for project of public purpose long back. According to Mr.Kavina, when time has come for allotment, unnecessary hurdles have been created by the petitioners and their associates under the wail of public interest and, therefore, the petition deserves to be rejected with exemplary costs. Mr.Kavina further submitted that the petition is filed on the misconception that the land in question is a 'gauchar' land. The land in question is not assigned as 'gauchar' land under the provisions of the Bombay Land Revenue Code read with the Gujarat Land Revenue Rules, 1972. According to Mr.Kavina, Section 38 of the Bombay Land Revenue Code read with Rule 73(2) of the Gujarat Land Revenue Rule contemplates that for assignment of any land as 'gauchar' land there has to be an order recorded in writing by the Collector of such assignment. In the instant case, no such order was ever recorded in writing by the Collector under Rule 73 of assigning the land in question as 'gauchar' land. According to Mr.Kavina, any open Government land vested into panchayat as open land cannot become a 'gauchar' land even if such open land was popularly known as 'Chara' for some cattle grazing in such open land. Mr.Kavina submitted that his clients had lost almost everything at the time of Mukteshwar Reservoir Project. If land is to be allotted by way of rehabilitation policy, then it can be termed as the same is in public interest. Mr.Kavina reiterated all other submissions as canvassed by Mr.P.K.Jani, learned Government Pleader. Mr.Kavina, therefore, urged that this petition deserves to be dismissed with costs.
Having heard learned counsel for the respective parties and having gone through the materials on record, the only question which falls for our consideration in this petition is as to whether respondent no.2 – Collector erred in law or in any other manner in passing an order of allotment of land in favour of respondent nos.3 and 4.
Before entering into the merit, we propose to deal with the preliminary contention as raised by Mr.Percy Kavina, learned senior counsel appearing for respondent nos.3 and 4, as regards the genuineness of the public interest involved in the present petition and also as regards the bonafides of the petitioners.
Ordinarily, court would allow litigation in public interest if it is found :
(i) That the impugned action is violative of any of the rights enshrined in Part III of the Constitution of India and relief is sought for its enforcement;
(ii) That the action complained of is palpably illegal or mala fide and affects the group of persons who are not in a position to protect their own interest on account of poverty, incapacity or ignorance;
(iii) That the person or a group of persons were approaching the Court in public interest for redressal of public injury arising from the breach of public duty or from violation of some provision of the Constitutional law;
(iv) That such person or group of persons is not a busy body of meddlesome inter-loper and have not approached with mala fide intention of vindicating their personal vengeance or grievance;
(v) That the process of public interest litigation was not being abused by politicians or other busy bodies for political or unrelated objective. Every default on the part of the State or Public Authority being not justiciable in such litigation;
(vi) That the litigation initiated in public interest was such that if not remedied or prevented would weaken the faith of the common man in the institution of the judiciary and the democratic set up of the country;
(vii) That the State action was being tried to be covered under the carpet and intended to be thrown out on technicalities;
(viii) Public interest litigation may be initiated either upon a petition filed or on the basis of a letter or other information received but upon satisfaction that the information laid before the Court was of such a nature which required examination;
(ix) That the person approaching the Court has come with clean hands, clean heart and clean objectives;
That before taking any action in public interest the Court must be satisfied that its forum was not being misused by any unscrupulous litigant, politicians, busy body or persons or groups with mala fide objective of either for vindication of their personal grievance or by resorting to black-mailing or considerations extraneous to public interest.
We shall first deal with the question as to whether there is at all any conflict between the order passed by the Collector dated 18th January 2011 and the one passed by the Secretary, Panchayat Department dated 29th September 2011. There is no doubt in our mind that the order passed by respondent no.2 – Collector dated 18th January 2011 has been passed in exercise of delegated powers by the State Government under Section 271 of the Gujarat Panchayats Act, 1993. As Section 271 of the Act empowers the Government to authorize any officer of the Government to exercise any of the powers exercisable by the State Government, except the power to make rules, the power delegated to any officer would still remain the power of the Government and, therefore, the officer who exercises the power under Section 108(4) of the Act is, in fact, not exercising his own statutory power but he is exercising powers of the Government and, therefore, his action taken in pursuance of delegation under Section 271 of the Act would be treated as an action of the Government.
We may only say that the powers exercised by the Collector under Section 108(4) of the Act for resumption of land is by virtue of the delegated powers in view of the provisions of Section 271 of the Act. Thus, in substance, it is an order passed by the State Government.
So far as the revision application which was heard by the Additional Secretary (Panchayat) is concerned, the issue was altogether different. In our opinion, the issue was very limited to the extent as to whether the Panchayat could have reviewed its earlier resolution and passed a fresh resolution to the effect that they do not agree to the allotment of 'gauchar' land in favour of respondent nos.3 and 4. First, it is nobody's case that the consent or the views of the Panchayat in this regard were ever called for by any authority before taking decision for allotment of land in favour of respondent nos.3 and 4. It appears that it was a unilateral act on the part of the Panchayat having come to learnt that land is being allotted to respondent nos.3 and 4.
Be that as it may, the Panchayat could have passed a resolution stating that they do not agree to grant of such land. The question is how far such a decision of the Panchayat would be binding on the Government. So far as this question is concerned, it should not detain us any longer to answer the same.
Section 108 of the Panchayat Act, 1993 pertains to vesting of certain land in Panchayat by the Government and reads as follows :
“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 alternative 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 (I of 1894).”
In terms of Sub-section(4) of Section 108 of the Gujarat Panchayat Act, 1993, it is lawful for the State Government to resume any land including the grazing land vested by the Government in Panchayat, if it is required for any public purpose.
In Panchayat Varga Shramjivi Samudaik Sahakari Khedut Co-op Society Ltd. and others v/s. Haribhai Mevabhai and others, reported in AIR 1996 SC 2578, Supreme Court had an occasion to deal with the issue, as to whether before resumption of a land by the State Government under Section 108(4) of the Act was it obligatory to hear the panchayat or seek its consent. [In the case before the Supreme Court, Supreme Court was dealing with Section 96(4) of the Gujarat Panchayats Act, 1961, which is now Section 108(4) of the Gujarat Panchayats Act, 1993].
The Supreme Court answered the issue in negative observing as under :
“Economic empowerment of the poor, in particular the Scheduled Castes and Scheduled Tribes, as is enjoined under Article 46, is a constitutional objective as basic human and fundamental right to enable the labourer, Scheduled Castes and Tribes to raise their economic empowerment. When the appellant-Society had requested for assignment of the waste land vested in the Gram Panchayat, the Gram Panchayat undoubtedly passed a unanimous resolution requesting the Collector to resume the land for assignment to the appellant- Society. Since, the Gram Panchayat as a representative body passed the resolution, it would be obvious that the elected members represent the interest of the Gram Panchayat for effecting the constitutional goal. When the Gram Panchayat in turn passed the resolution for the said purpose, there was no obligation to issue notice to the villagers. That apart, the scheme of Section 96 is clear. The Legislature is cognizant of the fact that when public road or street is sought to be discontinued or closed, public is likely to be effected, Sarpanch or Chairman acting on behalf of Gram Panchayat etc. is enjoined by the proviso to sub-section (2) of Section 96 to issue notice to them. It specifically enjoins the Sarpanch or the Chairman, as the case may be, to cause a notice to be issued in the prescribed manner, before passing a resolution so that the affected users would have an opportunity to put in their objections for consideration by the Gram Panchayat. But when the waste land or open site or vacant land or grazing land vested in the State was sought to be resumed from the Gram Panchayat by the Collector for another laudable public purpose, then the silence of issuance of notice is eloquent. Requirement of hearing the villagers is not insisted. The Legislature did not intend issuance of notice to villagers.
We may now come to the question of adequacy of 'gauchar' land at village Mahi. It would be profitable to refer to few relevant Government Resolutions. It appears that the said did not cover the merged areas of the State and it did not also clearly indicated as to which animals would fall under 'cattle' for which free grazing areas should be assigned under the Land Revenue Code and the Rules issued thereunder and, therefore, Government issued another Government Resolution and issued the following orders.
“(i) The Collectors in charge of villages merged in the State of Bombay should, after consultation with the Director of Agriculture, the Chief Conservator of Forests and the Director of Animal Husbandry and Veterinary Science, prescribe the standard grazing areas in respect of the merged villages and communicate them to the officers concerned and also to Government for issuing the requisite correction slip to the Bombay Forest Manual.
(ii) While fixing the area to be assigned for grazing in each village only the following cattle should be taken into account :-
(a) Cows, bulls, bullocks, he-buffaloes, she- buffaloes, donkeys and ponies provided that they are useful for breeding, milking, agricultural operations and other useful work connected with agricultural operations.
(b) Calves as defined in the 'Comments' below Village Form XV in the Revenue Accounts Manual.
(iii) All useless cattle, sheep, goats, cattle belonging to professional grazers or professional cattle breeders or commercial dairies and cattle used for business purposes e.g. ponies exclusively used for tongas plying for hire, bullocks exclusively used for carts playing for hire, should not be taken into account for the purpose of assigning lands for free grazing in a village.”
It appears that thereafter following points were raised for consideration of Government :-
“(a) Whether reservation of grazing areas is necessary and if so, what area should be reserved per hundred head of cattle: and (b) Whether Government land, which is under cultivation, should be withdrawn from cultivation for being assigned for grazing.”
It appears that thereafter after considering the report received from the officers concerned, Government issued the Government Resolution No.GR8-1053/5627 dated 10.05.1954 and Government issued the following directions :
“(i) the old practice of assigning lands for grazing under Section 38, Land Revenue Code and rule 73, Land Revenue Rules and the orders issued from time to time, should be maintained.
(ii) The standard acreage of grazing area fixed under paragraph 1 of Government Resolution No.7633/49, dated the 11th December 1952, should be fixed at 40 acres per 100 head of cattle in the Northern Division and 50 acres per 100 head of cattle in the Central Division and the Southern Division subject to the consideration mentioned in (v) below.
(iii) The Collectors of the districts concerned should revise the assignment of grazing area on this basis and dispose of the surplus area (i.e. area remaining after assigning land for public purpose including grazing), for cultivation in accordance with the standing orders of Government.
(iv) In some villages land has been in fact used for grazing without formal assignment. The Collectors concerned should now make a formal assignment and see to it that it is noted in the village records.
(v) If forest areas are available for grazing in or adjoining a village, that factor should be taken into account at the time of determining the area required to be assigned for grazing in that village and the limits prescribed in (ii) above halved where necessary.
(vi) In villages where the total area assigned for grazing is inadequate, attempt should be made to make up the deficit by assigning uncultivable waste land for this purpose.”
Thereafter, considering the aforesaid orders, Government issued Circular dated 30th December 1988 reiterating that as per Government standards for 100 cattle, 48-acres (16- hectares) of 'gauchar' land is required to be maintained so that village cattle can be properly looked after. However, the Government is empowered to resume even the 'gauchar' land for any public purpose. The circular further provided that wherever availability of 'gauchar' land is less than the prescribed standard, in such cases, 'gauchar' land should not be utilized for any other purpose and that in exceptional cases only when such land is required for public purpose, procedure for resumption of land should be undertaken. Even in such case, if there is opposition from the local self-government bodies, as far as possible, procedure for resumption of such land should be avoided unless opposition is found to be baseless.
This circular is significant for two purposes. First, it refers to the ratio of village cattle to the 'gauchar' land to be maintained as far as possible. Secondly, though while recognizing the Government power to resume 'gauchar' land for any public purpose, it also refers to consultation with the village panchayat while resuming the 'gauchar' land in case where minimum ratio is not maintained. We may only say that Government Circulars or Resolutions provide guidelines for the purpose of administration. Government Circulars or Resolutions do not have any statutory force, though in the resolution consultation has been provided for but the Act does not contemplate such consultation before resumption of land for any public purpose. So far as this issue is concerned, we have discussed the judgment of the Supreme Court quoted above in the case of Pachhat Varga Shramjivi Samudaik Sahakari Khedut Co-op Society Ltd. (supra).
Under such circumstances, if the State Government decided to allot some portion of grazing land vested with Mahi Gram Panchayat to rehabilitate respondent nos.3 and 4 as they lost their land in the Mukteshwar Reservoir Project, then it could not be said that the decision of the State Government is arbitrary and based on no reason whatsoever, but even on mere ipse dixit of the said authorities. The Executive Authority of the State must be held to be within its competence to frame a policy for the administration of the State. Unless the decision of policy framed is absolutely capricious and not being informed by any reason whatsoever, can be clearly held to be arbitrary and founded on mere ipse dixit of the execution functionaries thereby offending Article 14 of the Constitution of India or such policy offending other constitutional provisions or comes into conflict with any statutory provision. The Court could not and should not outstep its limit and tinker with the Policy decision of the authorities of the state.
We shall now look into the judgment relied upon by Mr.Majmudar in support of his contentions. Mr.Majmudar has relied upon decision of the Supreme Court reported in the case of State of Jharkhand and others v/s. Pakur Jagran Manch and others [(2011)2 SCC 591]. Mr.Majmudar has relied upon the observations made by the Court in paragraphs 23, 24 and 25, which read as under :
“23. We should however note that such de-reservation of any Government land reserved as gochar, should only be in exceptional circumstances and for valid reasons, having regard to the importance of gochar in every village. Any attempt by either the villagers or others to encroach upon or illegaly convert the gochar to house plots or other non-grazing use should be resisted and firmly dealt with. Any requirement of land for any public purpose should be met from available waste or unutilized land in the village and not gochar.
24. Whenever it becomes inevitable or necessary to de- reserve any gochar for any public purpose (which as stated above should be as a last resort), the following procedure contemplated in Regulations 24 and 25 and Section 38(2) should be strictly followed :
(a) The jurisdictional Deputy Commissioner shall prepare a note/report giving the reasons why the gochar had been identified for any non-grazing public purpose and record the non-availability of other suitable land for such public purpose. The Deputy Commissioner shall send the said proposal for de-reservation to the State Government for its previous sanction.
(b) The State Government should consider the request for sanction keeping in view the object of gochar and the need for maintaining a minimum of five percent of village area as gochar, and call for suggestions/objections from the villagers before granting sanction.
(c) If the State Government grants the sanction, the Deputy Commissioner should proceed to make an order de-reserving, the gochar by making appropriate entries in the record-of-rights and reclassifying the same for the purpose for which it was de-reserved.
(d) Whenever the gochar in a village is de-reserved and diverted to non-grazing use, simultaneously or at least immediately thereafter the State should make available alternative land as gochar, in a manner and to an extent that the gochar continues to be not less than 5% of the total extent of the village as provided under Section 38(2) of the Tenancy Act.
25. When the gochar is not Government land, but is village common land vesting in the villagers and not the Government, the consent of village headman and the Jamabandi Raiyats/villagers in whom the land vests shall have to be obtained, before de-reservation and diversion of use of gochar.”
What could be deduced from the observations made by the Supreme Court is that de-reservation of any Government land reserved as 'gauchar' must be in exceptional circumstances and for good reasons. Any requirement of land for any public purpose should be met from available waste or unutilized land in the village and not 'gauchar'. Apart from this, it appears that the Supreme Court was dealing with a regulation framed by the State of Jharkhand. In paragraph 25, the Supreme Court has observed that when 'gauchar' is not Government land but is village common land vesting in the villagers and not the Government, the consent of village panchayat shall be obtained. This is suggestive of the fact that it is only in cases where the land in question is a village common land vesting in the villagers that the consent of the village panchayat be obtained, but if it is 'gauchar' land of the Government, then consent need not be obtained of the village panchayat. In the present case, as discussed earlier, Section 108(4) of the Panchayats Act makes the position very clear that no prior consent or permission is required of the village panchayat before resuming the 'gauchar' land or before utilizing any portion of 'gauchar' land for any public purpose. Under such circumstances, this judgment would not help Mr.Majmudar in any manner as it could not be said that the Supreme Court has laid down as an absolute proposition of law that under any circumstances Government cannot part with 'gauchar' land even if it is to be used for any other genuine and bonafide public purpose.
Before parting, we would like to state, more particularly considering that the litigation in the nature of a public interest relating to 'gauchar' has been alarming over a period of time, undoubtedly Government has a Policy in this regard. However, the question is, to what extent Government is able to adhere to and follow the norms as laid down under the said Policy. We are of the view that many a times Government may find difficulties in allotting suitable land other than 'gauchar' land for public purpose. Under such circumstances, the other public purpose also could not be permitted to be overlooked or avoided. Though total cattle population may be very high as pointed out in most of the cases on the strength of certificates and statements issued by Talati-cum-Mantri, Sarpanch, Taluka Development Officer, etc., but not all the cattle in the village are to be counted for the purpose of maintaining minimum 'gauchar' land. The resolutions of the State Government itself provide that useless cattle, cattle belonging to professional grazers or professional cattle breeder or commercial dairies and cattle used for business purpose, should not be taken into account for the purpose of maintaining minimum area of 'gauchar' land. Keeping this in mind, we suggest to the State Government to review its resolutions passed in this regard from time to time and amend them accordingly. If the Government itself is not able to follow its own policy or strictly adhere to it, then it is meaningless to keep such a policy subsisting thereby giving rise to litigations in the nature of a public interest. It is high time that the State Government takes up this issue seriously and evolve a policy which is workable, practical and would protect the interest of one and all.
For the reasons aforestated, we find no merit in this petition and the same is accordingly rejected with no order as to costs. Interim order granted earlier stands vacated forthwith.
(Bhaskar Bhattacharya, C.J.)
(J.B.Pardiwala, J.)
After this order is passed, Mr.Majmudar, learned advocate appearing on behalf of the petitioner, prays for stay of operation of our above order.
In view of what has been stated above, we find no reason to stay our order. Prayer is refused.
(Bhaskar Bhattacharya, C.J.)
/moin
(J.B.Pardiwala, J.)