(Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA) As common questions of fact and law are involved in the above captioned batch of petitions, they were all heard together and are being disposed of by this common judgment and order.
It would be expedient to state that all writ petitions except the main writ petition being Writ Petition (PIL) No.19 of 2011 were before the respective learned Single Judge of this Court, but while hearing Writ Petition (PIL) No.19 of 2011, we noticed that the subject matter of all other writ petitions referred to above is the same and directly connected with the subject matter of Writ Petition (PIL) No.19 of 2011 and, therefore, with a view to avoid any conflicting judgment coming on record, we thought fit to hear the other petitions also together. Accordingly, all Special Civil Applications were clubbed and were heard with the main Writ Petition (PIL) No.19 of 2011.
The petitioner - Khetshi Hirji Shah, a native of village Adhoi situated in Kutch District, and at present settled in Mumbai, by way of this Public Interest Litigation under Article 226 of the Constitution of India, has brought to the notice of this Court serious illegalities and irregularities at the end of the respondents, more particularly, Adhoi Gram Panchayat in dealing with and squandering away 100 acres of open land which was acquired by the State of Gujarat under the Land Acquisition Act for the purpose of rehabilitation of the earthquake victims.
This petition depicts extremely sorry state of affairs at the end of the State Government and its officers for the simple reason that timely action on the part of the State authorities could have saved the land being squandered away by the Panchayat. Land which was acquired for the purpose of rehabilitation of the earthquake victims has been used by different individuals and so-called charitable institutions for construction of temples, bungalows, flats, residential complexes, etc.
The case made out by the writ-petitioner may be summed up thus :
On 26th January 2001 the State of Gujarat witnessed one of the worst natural calamities in the form of a devastating earthquake rendering lacs of people homeless and claiming lives of thousands of people. The District of Kutch was the worst affected area being the epicenter of earthquake. Almost the entire region of Kutch got destroyed and the maximum casualties were also in the District of Kutch. One of the towns named Adhoi was severely affected rendering almost all inhabitants of the town and the surrounding areas homeless. From all parts of the country helping hand was extended to meet with the situation and at that point of time, the Government of Maharashtra also extended its helping hand by declaring that it would help the town of Adhoi by providing necessary funds to reconstruct the houses and other structures which got destroyed during the earthquake. For this purpose, the Government of Maharashtra entered into a Memorandum of Understanding with the Government of Gujarat. The Government of Maharashtra decided to support rehabilitation and reconstruction initiative in partnership with the Government of Gujarat as per the Government guidelines. The Government of Maharashtra agreed to bear 100% expenditure excluding the land cost. Pursuant to the Memorandum of Understanding the Government of Gujarat acquired 300 acres of land at a cost of more than Rs.1 crore. About 200 acres of land was utilized by the Government for building houses for the earthquake affected persons and around 100 acres of land remained surplus.
Record reveals that the acquisition proceedings etc. were undertaken by the State of Gujarat, for which the necessary funds came from the Government of Maharashtra. As per the original plan as well as the award which was published under Section 11(1) of the Land Acquisition Act, 1894, 1900 residential houses were to be constructed including hospitals, schools, panchayat building, anganwadi, community hall, etc. In all 119.55 hectares of land was acquired under the award and a total compensation for the land under acquisition to the tune of Rs.1,03,82,543=00 was paid to the persons whose land were acquired for the purpose of rehabilitation.
Record also reveals, more particularly the award, that the land in question for the purpose of 'gamtal' (village site) was merged with Adhoi village 'gamtal' and a mutation entry in this regard was ordered to be effected in the revenue records and the panchayat records. The award itself provides that as per the rules, after the allotment of the plot (building) to the eligible beneficiary, the excess land will have to be kept for the use for public purpose in the village.
It appears that after utilizing 200 acres of land for the purpose of rehabilitation, the balance 100 acres of land fell vacant and the local gram panchayat set its eyes on the same.
It appears that the then Sarpanch of Adhoi Gram Panchayat addressed a letter dated 25th August 2003 to the Government of Maharashtra with a request that the Panchayat may be permitted to allot the vacant 100 acres of land not utilized for the purpose for which it was acquired.
It appears that this letter dated 25th August 2003 was not made known to the higher authorities including the State Government. The Government of Maharashtra vide its letter dated 22nd September 2003 very specifically replied to the Sarpanch of Adhoi Gram Panchayat that the Government of Maharashtra has no objection to the proposal subject to distribution of the open land purely for public, religious purpose without any discrimination and further the distribution procedure be brought to the notice of the appropriate authority of Revenue Department of Government of Gujarat to follow the procedure. Since this particular letter assumes importance so far as the subject matter of this petition is concerned, we deem fit to quote the exact letter which was addressed by the Government of Maharashtra dated 22nd September 2003 "GOVERNMENT OF MAHARASHTRA EQR/2003/CR-26/GERP, Earthquake Rehabilitation Cell, Revenue & Forest Deptt.
14th Floor, New Admn. Bldg.
Opp.Mantralaya, Mumbai-42 Date
- 22.9.2003 To, Sarpanch, Gram Panchayat, Adhoi, Tq.
Bachau (Kutch) Gujarat.
refer your proposal for distribution of vacant spare land for public purpose dt. 25.8.2003. I inform you that the Govt. of Maharashtra has no objection to your proposal subject to the Gram Panchayat should distribute the open land for purely public, religious purpose and to all applicant without any discrimination.
The distribution procedure may be brought to the notice of appropriate authority of Revenue Department of Government of Gujarat to follow the procedure. This procedure should be completed at earliest and inform us.
Deputy Secretary Copy to Zilla Panchayat, Bhuj for information Copy to TDO, Bachau for information"
The Adhoi Gram Panchayat, on the strength of this letter of the Government of Maharashtra dated 22nd September 2003, construed that the Government of Maharashtra has given a green signal to the Panchayat to deal with the vacant 100 acres of land and construing so, started distributing and allotting land indiscriminately in favour of individuals and institutions in a most highhanded and arbitrary manner.
Record reveals that the first step in the process was in the form of Resolution No.5 passed by the Panchayat dated 28th February 2004. The relevant portion of the Resolution is extracted for the sake of convenience.
"With regard to all the lands described in the resolution no.5, the land being applied for by the respective applicant be allotted by taking into consideration the requirement and all the officers and institutions concerned be intimated and all the aforesaid works be done. The applicants No.1 to -___ who wants to carry out new construction work, alternation-renovation work and to construct boundary walls in the Government of Maharashtra adopted houses of their ownership are granted permission to carry out construction work. Besides this, with regard to the applications for allotment of land, for religious, social and institutional purposes from out of the and reserved sectorwise for public purpose from out of the land acquired by the Government of Maharashtra in sector nos. 1 to 6, this land belongs to the Government of Maharashtra. Therefore whatever decision that would be taken after obtaining prior consent of Government of Maharashtra and the permission of the competent authority, the proceedings would be taken up according to the same. The resolution with regard to this matter put forward by the Chairman was passed in today's meeting.
Proposed by the Chairman."
It appears that the petitioner herein realizing that by passing such a resolution the Panchayat would allot and distribute the land for vested interest and for their own individual gain, decided to challenge the said Resolution by filing Special Civil Application No.19858 of 2007. The Division Bench of this Court, vide order dated 12th November 2008, disposed of the said writ petition which was also in the nature of a Public Interest Litigation. The Division Bench took the view that there was no reason to examine the correctness or otherwise of the Resolution No.5 passed by the Panchayat dated 28th February 2004. The Bench also observed that the land actually belongs to the State of Maharashtra and it would be open for the State of Maharashtra or as a matter of fact even the State of Gujarat to take appropriate remedial actions. However, the Court did not deem fit sitting in Public Interest Litigation to interfere with the resolution passed by the Panchayat. It was also brought to the notice of the Court by one of the counsel appearing for the respondents that the lands were already allotted to them and they have already constructed religious institutions and temples, etc. in the land in question. As against this, the Court clarified that it would be needless to say that if any action is taken by the State of Maharashtra or by the State of Gujarat appropriate notices be issued.
Record reveals that much prior to the disposal of the Public Interest Litigation in the year 2007, the Panchayat had already started allotting the land arbitrarily upon receiving applications from individuals. It is very difficult to understand as to on what basis and under which power such allotments could have been made by the Gram Panchayat. We have come across one such order of allotment and a bare perusal of the order would suggest the highhanded manner in which the land came to be distributed amongst people for their individual interest. We quote one such order dated 8th March 2004.
" Shri Shri Momaya Mataji Mandal Subject: Regarding allotment of open land for the public purpose in Shahu Nagar within new village rehabilitated by the Government of Maharashtra.
Taking into consideration the application dated 26.8.03 of your aforesaid institute, Your institute is hereby allotted 1100 square meters of open land shown in red colour in the plan annexed hereto for the public purpose out of the open land meant for public purpose in Sector 1 subject to the following terms and conditions :-
-:
TERMS AND CONDITIONS :-
The open land allotted to the institute and the constructed carried out thereon shall be used for public purpose only.
After obtaining permission from Adhoi Gram Panchayat, the construction shall be carried out on the land allotted to the institute and it shall be responsibility of the institute to maintain the same in future.
The income derived from the land allotted to the institute and the construction carried out thereon can be used only for the progress of the society.
The open land allotted to the institute cannot be sold to any private person.
The Government of Gujarat, District Panchayat, Kutch and Gram Panchayat shall have right to add any reasonable and proper terms and conditions and the institute shall have to abide by the same.
If the institute violates any of the aforesaid terms and conditions, then Adhoi Gram Panchayat shall be entitled to take legal action against it.
Special note :- As the allotment of the open land meant for public purpose has been made to the institute as shown in the plan, if any change takes place in the area of the land, then the institute shall be responsible for the same.
Sd/-
K.J.Vankar Khuman Jakhara Vankar Sarpanch Shri Adhoi Group Gram Panchayat"
After a very long time different authorities including the State Government woke-up from a deep slumber having realized that 100 acres of precious land has been thoroughly misused by the local gram panchayat and people have built palatial bungalows and have put up residential schemes in the said land which was supposed to be used for the purpose of rehabilitating the earthquake victims. At no point of time the Gram Panchayat realized that the land of poor agriculturists and farmers was acquired under the Land Acquisition Act for which a very nominal compensation was paid and if the land could not be used further for the purpose of rehabilitation as only 200 acres of land came to be utilized, then in that case, it was the duty of the Gram Panchayat to have brought to the notice of the higher authorities including the State Government in this regard who could have decided as regards the use of such land for other genuine public purpose and atleast not for the purpose of constructing bungalows, temples, 'dharamshalas' and residential complexes.
It is in this background that the present petition has been preferred, whereby the petitioner has prayed that each and every construction which has been put up by individuals or institutions without any authority of law should be removed and 100 acres of land, if not required for any other genuine public purpose, be returned to the villagers from whom the land was acquired at the rate of Rs.5=00 or Rs.7=00 per sq.meter.
It is also the case of the petitioner that Resolution No.5 which was passed by the Panchayat in its meeting dated 28th February 2004 by which part of 100 acres of land was sub-plotted and allotted to 59 institutions without inviting tenders or holding auctions was suspended from its operation, implementation and execution by the Taluka Development Officer vide Resolution dated 21st October 2005 passed under Section 249(1) of the Gujarat Panchayats Act, but inspite of this, the Gram Panchayat i.e. the Sarpanch and other members granted development permission to number of institutions. The Resolution No.5 which was suspended from its operation by the Taluka Development Officer was in his capacity as the land acquiring authority. The land acquiring body is the Taluka Development Officer, Bhachau, as per the award and, therefore, the Gram Panchayat had no powers, authority or jurisdiction to allot such land in such a highhanded manner which smacks of nothing but personal vested interest and corruption.
It is also the case of the petitioner that as per the award the land was merged with the 'gamtal' land of village Adhoi and after such a merger, the Adhoi Gram Panchayat could not have allotted land to private institutions and organizations by misusing its power. This action on the part of the Adhoi Gram Panchayat caused heavy monetary loss to the Government of Gujarat as it is only the private individuals and institutions who were benefited by the same free of cost.
It is also the case of the petitioner that even non-agriculture usage charge, education cess, rent and other local cess are neither determined nor collected.
Record reveals that in the recent past the Adhoi Gram Panchayat granted further development permissions by way of passing Resolutions in its meetings in favour of number of allottees and the Taluka Development Officer, Bhachau suspended such resolutions vide order dated 2nd November 2010. Subsequently, the Adhoi Gram Panchayat issued notices to such organizations/ institutions which came to be challenged by the respective individuals or institutions by way of writ petitions which are all clubbed with the main writ petition being Writ Petition (PIL) No.19 of 2011.
This Writ Petition (PIL) No.19 of 2011 came up for hearing for the first time on 17th February 2011 and on that day notice was issued upon the respondents. Upon notice being served to the respective respondents, they have appeared before us and have opposed this petition by filing respective affidavit-in-reply.
I.
Stand of Respondent No.2 - Collector, Kutch :
As per the say of respondent no.2, 119.55.34 hectares of land was acquired as 'gamtal' for Adhoi Gram Panchayat, Taluka Bhachau, District Kutch. The said land is 'gamtal' and it is under the purview of the Gram Panchayat, Adhoi. The administration of the Gram Panchayat regarding 'gamtal' land is supervised by the Taluka Panchayat and the District Panchayat.
Illegal construction has been carried out and structures have been erected upon the said land. Adhoi Gram Panchayat passed resolution completely contrary to the provisions of the Gujarat Panchayats Act, for which action is required to be taken by the Taluka Development Officer and the District Development Officer. It is the duty of the District Development Officer to take necessary and effective measures to remove such encroachment and then report to the Collector. The District Development Officer is obliged to supervise the land falling under his jurisdiction and he is also authorized under law to take necessary action under the provisions of law if illegality is noticed by him. The District Development Officer has prepared a status report of the land. The status report prepared by the District Development Officer name the persons and the institutions in whose favour the land has been allotted along with photographs.
II.
Stand of Respondent No.3 :
The District Development Officer, Kutch District Panchayat, by way of an affidavit-in-reply, has stated that the Taluka Development Officer, Bhachau was instructed in writing on 13th January 2012 to lodge a police complaint against all the responsible parties, including the elected members of the Gram Panchayat, staff members, etc.
It appears that thereafter an FIR came to be registered being CR.I.No.5 of 2012 at Adhoi Police Station on 30th January 2012 for the offences punishable under Sections 409, 465, 468, 471, 120-B, 188 read with Section 114 of IPC against all the responsible persons including the beneficiaries of the allotted land.
Record also reveals that the then Sarpanch at the relevant point of time was proceeded under Section 57(1) of the Gujarat Panchayats Act and was ordered to be removed from office. The said decision of removal was challenged by the then Sarpanch by filing Special Civil Application No.17277 of 2006 but the same came to be rejected and confirmed by the Division Bench in Letters Patent Appeal No.946 of 2006.
III. Stand of Respondent No.6 : Adhoi Visha Oshwal Murti Pujak Jain Sangh The petitioner has no locus standi to file the petition to remove so-called encroachment on the land. Vague averments have been made alleging encroachment in the land acquired and possessed by the Government of Maharashtra. Petitioner is nothing but a busybody not residing at village Adhoi and is a resident of Mumbai. He is in the habit of filing several Public Interest Litigations against allotment of land for the purpose of rehabilitation of villagers of Adhoi. Petitioner had preferred Special Civil Application No.3314 of 2004 which came to be finally disposed of by a Division Bench of this Court vide judgment and order dated 1st July 2005, wherein allegations of identical nature regarding discrimination in allotment of land were levelled and the Division Bench disposed of the same by issuing suitable directions. Against the said judgment and order dated 1st July 2005 passed by the Division Bench of this High Court, the petitioner had preferred Special Leave Petition No.20458 of 2005, which was dismissed by the Supreme Court with an observation that the authorities may comply with the directions issued by the Division Bench of the High Court in Special Civil Application No.3314 of 2004 dated 1st July 2005. After this, the petitioner preferred another petition being Special Civil Application No.19858 of 2007 praying for quashing and setting aside the resolution passed by the Adhoi Gram Panchayat dated 28th February 2004 and also to recover possession of the lands illegally allotted on the strength of the said resolution. The petition came to be finally disposed of by the Division Bench of this Court vide order dated 12th November 2008, wherein the Division Bench refused to entertain the petition.
Thereafter, the present petition has been preferred after a lapse of three years by just modifying the prayers. The subject matter of the present petition and the subject matter of previous writ petition being Special Civil Application No.19858 of 2007 are one and the same. The present petition would be hit by the principles of res judicata and, therefore, is not maintainable.
It is alleged that the present petition is an outcome of a pending criminal complaint lodged against one Mr.Jadeja by the present petitioner and also a criminal complaint filed by the erstwhile Sarpanch Mr.Khuman who, to the best of the information of respondent no.6, had lodged criminal complaint by invoking provisions of the Bombay Public Trusts Act, which ultimately terminated in favour of the petitioner.
Petition also suffers from the vice of delay and laches in view of the fact that the present petition which is essentially challenging the resolution passed by the Adhoi Gram Panchayat dated 28th February 2004, by which the lands have been allotted to the answering respondent and other similarly situated parties and on the basis of the said allotment the answering respondent has already changed its position and has already put up construction after getting their plans approved by the competent authority and in majority of the plots allotted pursuant to the resolution dated 28th February 2004, all the plot holders have constructed respective temples, 'dharamshalas', 'upashrays', etc. 300 acres of land was acquired for the purpose of rehabilitating villagers of Adhoi Gram Panchayat, wherein 2000 houses have been constructed by the Government of Maharashtra after making payment of the land in question as per the award declared by the Land Acquisition Officer and the land in question thus belongs to the Government of Maharashtra.
Even after allotment of houses, sizable land remained surplus and, therefore, Adhoi Gram Panchayat, at the relevant point of time, made a request to the Government of Maharashtra by writing letter for allowing the Panchayat to allot remaining land for public purpose and for carrying on religious activities. The Government of Maharashtra, vide communication dated 22nd September 2003, permitted the Panchayat to allot the land only for public and religious purposes without any discrimination.
As the land in question belongs to the Government of Maharashtra, the authorities of the State of Gujarat have no jurisdiction to proceed against any of the allottees of the land including respondent no.6 in any manner and the only person who can object such allotment being made by the Panchayat is the Government of Maharashtra and nobody else.
Vide allotment letter dated 8th March 2004, respondent no.6 was allotted 13,405 sq.meters of vacant land in Sector 3 by the Adhoi Gram Panchayat. Similarly, vide allotment letter dated 8th March 2004, respondent no.6 was allotted 7,000 sq.meters of vacant land in Sector 5 by the Adhoi Gram Panchayat. Respondent no.6 was desirous to construct 'upashray' for homeless Jain saints and, accordingly, layout plans for the proposed 'upashray' were submitted for approval to the Adhoi Gram Panchayat. The lay out plans were approved by the Adhoi Gram Panchayat and construction permission dated 18th December 2004 was accorded in favour of respondent no.6. Pursuant to the said construction permission, respondent no.6 completed the construction of the 'upashray' at a total cost of Rs.45,50,000=00 on 25th January 2006.
After completing the 'upashray', there was demand from the members of respondent no.6 Trust to construct new temple, 'ayanbilshala', 'bhojanshala' and office building to facilitate the smooth functioning of numerous religious activities and rituals. Accordingly, an application was preferred to the Adhoi Gram Panchayat for permission to construct temple, etc. on 5th May 2005. Permission was prayed for from the Panchayat as well as from the District Development Officer, Kutch-Bhuj, but since respondent no.6 did not hear anything from both the authorities, they proceeded with the construction activities on the assumption that the lay out and building plans were approved by the authorities. The allegation that the construction is carried out by respondent no.6 without any sanction is baseless and incorrect.
IV.
Stand of Respondent No.46 : Adhoi Panjrapole By and large the stand of respondent no.46 is almost the same with that of respondent no.6. However, in addition to the stand of respondent no.6, the stand of respondent no.46 is that the petition deserves to be rejected on the ground that the petitioner has alternative efficacious remedy in the form of an appeal under Section 242 of the Gujarat Panchayats Act, 1993, whereby the petitioner can challenge any order passed by the Gram Panchayat to the Appeal Committee constituted by the District Panchayat, within 30 days from such order. Respondent no.46 has been allotted land for the purpose of construction of 'panjrapole' and as soon as necessary funds are received, they would start with the construction of 'panjrapole' so as to take care of cattle of village Adhoi.
V. Stand of Respondent No.5 : Bhadiben M.Barwad, Sarpanch of Adhoi Gram Panchayat :
State of Maharashtra is the true owner of the land in question. After construction of 2000 houses by the Government of Maharashtra, 100 acres of land remained surplus. The erstwhile Sarpanch, vide letter dated 25th August 2003 addressed to the Under Secretary, Rehabilitation Cell, Government of Maharashtra, requested that the Panchayat may be permitted to utilize the surplus land for public purpose as well as for religious activities. The Government of Maharashtra accepted the said request vide communication dated 22nd September 2003 granting permission to the erstwhile Sarpanch of Adhoi Gram Panchayat to allot the land for religious and public amenities. Pursuant to that, the Panchayat invited applications from general public for allotment of land for public amenities and religious purpose and permission was granted to put up construction.
Petition is not maintainable as the Government of Maharashtra has not been made a party respondent and it is very much essential to know the stand of the State of Maharashtra. When all the applicants have been granted land indiscriminately and no person is deprived of any of his legitimate right, no illegality can be said to have been committed by the Panchayat.
VI. Legal contentions on behalf of the Petitioner :
Mr.Yatin Oza, the learned senior counsel appearing for the petitioner, strenuously urged that there cannot be a better case than the present one to demonstrate as to how the Panchayat in a most arbitrary and highhanded manner distributed land to different individuals and institutions without any power of such distribution or grant. Mr.Oza submitted that the facts of the present case are very eloquent. After the earthquake, the State of Maharashtra extended its helping hand and decided to provide funds for construction of almost 2000 houses which got destroyed. For this purpose, 300 acres of land was acquired by the State of Gujarat on urgent basis and out of which 200 acres of land came to be utilized whereas 100 acres of land remained surplus. Mr.Oza further submitted that the award provides that 300 acres of land which was acquired would be a part of Adhoi village 'gamtal' land, but by merely including the land in a 'gamtal' of village will not confer power upon the local panchayat to deal with the same in the manner they deem fit without seeking any permission of the higher authorities like the Collector or the State. If 100 acres of land remained surplus, then in that case, the land could have been utilized for any other genuine public purpose but in any case the Panchayat could not have allotted land at their sweet will for the purpose of constructing temples, 'bhojanshalas', community halls, lavish bungalows, residential schemes, etc. Mr.Oza invited our attention to Section 110 of the Gujarat Panchayats Act, 1993, which provides for limitation of power of Panchayat to transfer immovable property. Section 110 of the Act is reproduced herein as under :
"110.
Limitation on power of panchayat to transfer immoveable property.- (1) Subject to the provisions of sub-section (2) no lease, sale or other transfer of any immoveable property vesting in, or acquired by a panchayat shall be valid unless such lease, sale or other transfer has been made with the previous sanction of the competent authority.
(2) In the case of a lease of immoveable property other than the property vesting in the panchayat under section 108, no such previous sanction shall be necessary, if the period of lease does not exceed three years."
The 100 acres of open land out of 300 acres of land was acquired for public purpose and vested in Panchayat as 'gamtal' land. Therefore, it could not have been transferred without the previous sanction of the competent authority. The competent authority has been defined in Section 2(4) of the Gujarat Panchayat Act. 'Competent authority' means such Government Officer, Panchayat or authority as the State Government may, by notification in the Official Gazette, appoint to perform the functions of a competent authority under such provisions of this Act and in respect of such panchayats as may be specified in the said notifications :
Explanation : For the purpose of this clause, a Government Officer includes a Government Officer posted under a panchayat under Sections 136, 161 or 232.
Under Section 104 of the Gujarat Panchayat Act, 1993, a Panchayat has the power to grant permission for construction. But since the land itself being immovable property could not have been allotted by the Panchayat without the previous sanction of the competent authority under Section 110, there was no question of permitting any construction to be made on the said lands by the Panchayat.
Mr.Oza further submitted that there is a basic and fundamental fallacy in the contention of all the respondents that it is the State of Maharashtra who is the true owner of the land in question and, therefore, the Government authorities cannot raise any objection in this regard. Mr.Oza submitted that the letter of the Under Secretary to the Government of Maharashtra addressed to the Sarpanch has been very conveniently misconstrued as if the State of Maharashtra granted permission to the Sarpanch to distribute the surplus 100 acres of land without any objection.
Mr.Oza vehemently submitted that land is something very precious. In this country, millions of people are homeless and without any shelter. The land could have been used by the Government for any other genuine public cause other than providing benefits to individuals and institutions. Mr.Oza submitted that precious land has been allotted without any consideration worth the name. Mr.Oza also submitted that there is no merit in the preliminary contention of the respondents so far as the maintainability of the present petition is concerned. Mr.Oza submitted that the principles of res judicata would not apply as in the earlier round of litigation all that the Division Bench observed was that it would not like to go into the legality of the resolution passed by the Panchayat. According to Mr.Oza, therefore, the only point for consideration before the Division Bench in the earlier round of litigation was the resolution which was passed by the Panchayat to allot the land to different applicants. Mr.Oza submitted that, thereafter, the higher authorities themselves thought fit to suspend the operation of the resolution which was passed by the Panchayat. Mr.Oza submitted that each and every authority right upto the State Government turned a blind eye on this issue and instead of taking action at the right time in an appropriate manner, kept a conspicuous silence which speaks volumes about their involvement too in the fraud. Mr.Oza submitted that each and every erring officer who is found a party to this fraud must be proceeded with and stern action deserves to be taken. Mr.Oza submitted that the land was acquired from poor farmers and agriculturists at the rate of Rs.5=00 to Rs.7=00 per sq.meter and the same land has been used by individuals for their vested interest by building bungalows and residential complexes. Mr.Oza lastly submitted that this is a fit case wherein this Court may exercise its power under Article 226 of the Constitution of India and direct the authorities concerned to demolish each and every construction put up on the surplus 100 acres of land and restore the land to its original position.
VII. Legal Contentions on behalf of Private Respondent :
Mr.N.D.Nanavati, learned senior counsel and Mr.Shalin Mehta, learned counsel appearing for the beneficiaries, in one voice, submitted that this petition deserves to be rejected solely on the ground that it is not maintainable being hit by the principles of res judicata. It was submitted that the Division Bench of this Court, vide order dated 12th November 2008 passed in Special Civil Application No.19858 of 2007, very clearly observed that there was no reason to examine the correctness or otherwise of Resolution No.5 passed by the Panchayat on 28th February 2004. They also submitted that the Bench also further observed that going through the said resolution the land actually belongs to the State of Maharashtra and considering the legality and steps taken by the Panchayat it would always be open for the State of Maharashtra or even the State of Gujarat to take appropriate remedial actions. The counsel submitted that since Resolution No.5 passed by the Panchayat on 28th February 2004 was not disturbing all allotments on the strength of such Resolution, it cannot be termed as illegal or unlawful. If land came to be allotted in favour of the respondents on the strength of such a resolution and if the respondents have constructed temples, etc., then in that case, no illegality can be said to have been committed.
Counsel also submitted that almost eight years have elapsed since the construction has been put up and lacs of rupees have been invested in putting up such construction. On this ground also this Court may not order demolition of the construction. Counsel submitted that as a matter of fact it is the State of Maharashtra who can be said to be the true owner of the land in question and the petitioner ought to have joined the State of Maharashtra so that the State of Maharashtra could have appeared before the Court and could have clarified their stand in the matter. The counsel, inviting our attention to the letter dated 22nd September 2003 (Annexure-C to the petition at page 204) addressed by the Government of Maharashtra to the Sarpanch, Adhoi Gram Panchayat, submitted that the Deputy Secretary in so many words informed the Sarpanch that the Government of Maharashtra has no objection to the proposal of the Gram Panchayat to distribute the open land for purely public, religious purpose without any discrimination. Relying on this letter, counsel submitted that since permission was granted by the State of Maharashtra to the Panchayat, it was within the powers of the Panchayat thereafter to invite applications and allot land in favour of individuals and charitable institutions. Lastly, the learned counsel submitted that even assuming for the moment that the allotment is illegal and the respondents could not have put up the construction without the permission of the higher authorities, even then such construction could be regularized by imposing conditions including recovery of market value of the land prevailing as on today.
VIII. Legal Contentions of the Authorities :
All the authorities, namely, Taluka Development Officer, District Development Officer and Collector, in one voice, have accepted the fact that the Panchayat could not have allotted the land and the allotment can be termed as per se illegal. Only because 300 acres of acquired land was covered in the 'gamtal' of village Adhoi by itself would not confer any authority or power on the body of the Panchayat to distribute the State Largess in such a highhanded and arbitrary manner. It was submitted that the erstwhile Sarpanch also came to be suspended and thereafter removed from the office for his highhanded action.
During the course of hearing, we called upon Mr.Prakash Jani, the learned Government Pleader to explain to us as to what is the stand of the State Government in this regard. We also inquired from Mr.Jani as to what action the Government proposes to undertake for removal of such unauthorized construction and restoration of the land in question, more particularly having taken the stand that it is the land of the Government and not that of the Panchayat. In reply to this, a short affidavit was filed by the Deputy Collector, Bhachau, stating that since the rights over the disputed land in question are vested with the Panchayat department, the Revenue department and the Panchayat department will have to consult each other and thereafter would take appropriate decision. As the State Government also refused to act immediately, we were left with no other option but to conclude the hearing of the matter.
IX. Analysis :
Having heard learned counsel for the respective parties and having gone through the materials on record, the undisputed facts which emerge on record are thus :
The State of Maharashtra extended its helping hand to the State of Gujarat by offering financial help for building houses at village Adhoi, Taluka and District Kutch, which collapsed on 26th January 2001 due to devastating earthquake.
For this purpose, a Memorandum of Understanding was entered into between the State of Maharashtra and the State of Gujarat.
The office of the District Collector, Anjar initiated appropriate proceedings for acquisition of land under the Land Acquisition Act and accordingly acquired 119.55.34 hectares of land by putting total compensation to the tune of Rs.1,03,82,543=00. The award itself makes it clear that the Government of Maharashtra has adopted Adhoi village for rehabilitation and is going to bear all the expenses relating to the rehabilitation of the village and will not ask the Government of Gujarat to share the financial liability.
After the acquisition proceedings were completed, the land in question around 300 acres came to be merged with the 'gamtal' of Adhoi village and in this regard mutation entry was also effected in the revenue records and the panchayat records. The award also makes it very clear that as per the rules, after the allotment of the plot (building) to the eligible beneficiary, the surplus land will have to be kept for the use for public purpose in the village.
1900 and odd houses were constructed, financed by the Government of Maharashtra, in an area of around 200 acres of land and 100 acres of land remained surplus.
Adhoi Gram Panchayat addressed a letter dated 25th August 2003 to the Under Secretary, GERP, Government of Maharashtra, Mumbai, requesting that they may be permitted to allot the vacant surplus land for the purpose of constructing temples and other worship places to different institutions, organizations and religious trusts subject to certain terms and conditions. It is important to state that in its letter dated 25th August 2003 addressed to the State of Maharashtra, the Panchayat informed that the land would be allotted subject to the following conditions :
The allotted land shall be used and put to be used only for the benefit of the public purpose by the allottee.
The construction and maintenance of any such structure as proposed by the applicant shall have to be done by the applicant.
Any income incurred from such structure/land will be spent for public purpose only of such community.
The allottee has no right to sell to any private persons.
Govt. of Gujarat, District Panchayat, Kutch and G.P.Adhoi shall have full Legal Rights to add any conditions as it will deem fit in future, which shall be binding to the allottee.
Gram Panchayat, Adhoi will take legal action against any contravention or Breaking the above conditions by the allottee.
In response to this proposal of the Panchayat, the State of Maharashtra informed vide its letter dated 22nd September 2003 that it has no objection to the proposal of the Panchayat but the distribution procedure may be brought to the notice of the appropriate authority of Revenue department of Government of Gujarat to follow the necessary procedure. Panchayat was also informed that the procedure should be completed at the earliest and accordingly be informed.
Panchayat, thereafter, passed Resolution No.5 in its meeting dated 28th February 2004 that the respective applicants be allotted land by taking into consideration the requirement and all the officers and institutions concerned be intimated.
It is an admitted position that the Panchayat did not inform the Revenue department of the State Government about their decision to allot the land to different applicants and proceed ahead to allot the land as if the Panchayat was the owner of the land and the Sarpanch and his team had all the authority and power under the law to make such allotment.
Adhoi Gram Panchayat knew very well that the construction which has been put up is in the nature of bungalows, flats, etc. but, still did not deem fit to stop such construction or take any action in this regard. Various temples came to be constructed including 'ashramshalas' and 'dharamshalas'.
The Taluka Development Officer suspended the operation of the resolution passed by the Panchayat but, inspite of such order being passed, the Panchayat went ahead with allotment of land in favour of different individuals on mere applications.
Action was initiated against the then Sarpanch for his highhanded attitude and abuse of power and was ordered to be removed ultimately under the provisions of the Gujarat Panchayats Act.
Criminal prosecution has also been launched against all erring individuals and beneficiaries for the offences of criminal breach of trust, etc. In light of the above undisputed facts, the first question which we need to address is as to whether the State of Maharashtra is the true and lawful owner of the land in question or is it the State of Gujarat who can be said to be now concerned with the land in question.
It has been vociferously submitted by learned counsel for the respondents that the State of Gujarat has no role to play because the land in question does not belong to it as it is the State of Maharashtra who is the owner of the land. We are unable to understand as to on what basis this contention has been canvassed. In our view, the State of Maharashtra merely extended its helping hand to the State of Gujarat and accordingly provided necessary funds to the State of Gujarat for the purpose of constructing houses and for providing compensation towards acquisition of 300 acres of land. By doing so, the State of Maharashtra would not become the owner of the land in question and it would never be the case of the State of Maharashtra as revealed from the materials on record. The land acquisition proceedings were also initiated by the Collector, Anjar and all other formalities were completed by the officers of the State of Gujarat. Apart from this, the land has been merged with the village site of Adhoi village and an entry to this effect has also been mutated in the record of rights. As a matter of fact, the letter addressed by the Panchayat to the State of Maharashtra was a very clever move on their part. It was none of the business of the Panchayat to directly address such a letter and if at all they had a proposal, they ought to have approached the Revenue department of the State of Gujarat and through the Revenue department of the State of Gujarat they could have informed the State of Maharashtra. It appears that without informing any other authority, the Panchayat straightway addressed the letter and the reply of the State of Maharashtra is also quite eloquent. The State of Maharashtra, in so many words, informed the Panchayat that before distributing or allotting land for any purpose, be it religious or public, the Panchayat will have to bring it to the notice of the appropriate authority of Revenue department of the State of Gujarat and follow the procedure. It is no one's case that the Panchayat did inform the appropriate authority of the Revenue department of the State of Gujarat. On the contrary, we have noticed that a copy of the letter dated 22nd September 2003 was forwarded to the District Panchayat, Bhuj as well as to the Taluka Development Officer, Bhachau. Even then, these two authorities also kept quiet and did not inform anything to the Government of Gujarat.
It appears that it is only in 2005 that the Taluka Development Officer thought fit to look into the matter and suspended the operation of Resolution No.5 passed by the Panchayat for the purpose of allotment of land. No action was initiated even by the District Development Officer being the Revenue head of the District Panchayat of Bhuj. We have no hesitation in outright rejecting the contention of the learned counsel for the respondents that it is the State of Maharashtra who is the owner of the land in question.
At this stage it would be profitable to look into the provisions of Sections 6 and 16 of the Land Acquisition Act, which read as under :
"6.
Declaration that land is required for a public purpose. - (1) Subject to the provision of Part VII of this Act, when the appropriate Government is satisfied, after considering the report, if any, made under section 5A, sub-section (2), that any particular land is needed for a public purpose, or for a Company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorized to certify its orders, and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under section 4, sub-section(1) irrespective of whether one report or different reports has or have been made (wherever required) under section 5A, sub-section (2):
Provided that no declaration in respect of any particular land covered by a notification under section 4, sub-section (1),-
(i) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 (1 of 1967), but before the commencement of the Land Acquisition (Amendment) Act, 1984 (68 of 1984), shall be made after the expiry of three years from the date of the publication of the notification; or
(ii) published after the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the date of the publication of the notification:
Provided further that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a Company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority.
(2) xxx xxx xxx (3) The said declaration shall be conclusive evidence that the land is needed for a public purpose or for a company, as the case may be; and, after making such declaration, the appropriate Government may acquire the land in manner hereinafter appearing."
"16.
Power to take possession. - When the Collector has made an award under section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances."
Section 16 of the Act provides that when the Collector has made an award under Section 11, he may take possession of the land. On the taking of such possession -
(a) the land vests absolutely in the Government, and
(b) it so vests free from all encumbrances.
Once the award is made on acquisition of land, it is the Collector alone that can take possession of the land and it is in the Government only that the land vests absolutely.
Sections 16 and 17 of the Land Acquisition Act provide that the property sought to be acquired, upon happening of certain events, shall vest absolutely in the Government free from all encumbrances. In the cases contemplated by these sections, the property acquired becomes the property of the State Government without any conditions or limitations, either as to title or possession.
It is an undisputed fact that the Collector in the present case passed an award and took over the possession of the land which was acquired and that is how the entire land vested with the Government free from all encumbrances. The Government, thereafter, became the owner of the land in question. It is, therefore, absolutely incorrect on the part of the private respondents to assert that the land belongs to the State of Maharashtra, which came to be vested in the Panchayat.
We shall now proceed to deal with the preliminary contention of the learned counsel for the respondents as regards the maintainability of this petition as being hit by the principles of res judicata.
Learned counsel appearing for the private respondents in one voice vociferously submitted that the present petition deserves to be rejected solely on the ground that it is not maintainable being hit by the principles of res judicata.
It has been submitted that the principles of res judicata would apply even to writ proceedings under Article 226 of the Constitution of India. Heavy reliance has been placed on the order passed by the Division Bench of this Court dated 12th November 2008 in Special Civil Application No.19858 of 2007, whereby the Division Bench observed that there was no reason to examine the correctness or otherwise of Resolution No.5 passed by the Panchayat on 28th February 2004 sitting in a Public Interest Litigation.
We have also noticed that the resolution was also couched in such a language which gave an impression to the Division Bench of this Court as if the land actually belong to the State of Maharashtra. As a matter of fact, from the order it transpires that the Division Bench did not go into the merits of the issue as to whether the construction which has been put up on the land in question by different individuals on the strength of allotment made by the Panchayat can be termed as illegal and whether it deserves to be removed so as to restore the land to its original position. Apart from this, the Division Bench also observed that it would always be open for the State of Maharashtra, or as a matter, even the State of Gujarat to take appropriate remedial actions and if any action is taken by any of the States, then appropriate notice be issued. Saying so, the Public Interest Litigation was disposed of.
In our opinion, this order cannot operate as a res judicata so far as the maintainability of the present petition is concerned. In the present petition, the petitioner has prayed for a writ of mandamus upon the respondent - authorities to remove encroachment on the Government land admeasuring 100 acres in village Adhoi and to handover the open land to the poor villagers from whom the said land was acquired.
As a matter of fact, so far as the challenge to Resolution No.5 passed by the Panchayat is concerned, the Division Bench never looked into the merits of the resolution and merely said that there was no reason to examine the correctness or otherwise of the Resolution in a Public Interest Litigation.
There was no adjudication on merit so that it could be said that the issue was finally decided between the parties. We, therefore, reject the preliminary contention of the learned counsel for the private respondents so far as the maintainability of this petition is concerned.
We shall now proceed to consider the plea of the petitioner as to whether the constructions put up by different individuals and institutions deserve to be removed and thereby restore 100 acres of land to its original position. Before undertaking this exercise, we need to look into certain provisions of the Gujarat Panchayats Act, 1993. Chapter V Part I deals with 'property' and 'funds'. Sections 108(1), 108(4), 109 and 110 read as under :
"108.
Government may vest certain land in panchayat.-(1) For the purpose of this Act, the State Government may subject to such a 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) xxxx xxxx xxxx (3) xxxx xxxx xxxx (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.
109. Other property of village panchayat.-(1) A taluka panchayat or the district panchayat may from time to time direct that any property vesting in it shall vest in a village panchayat and thereupon notwithstanding anything contained in the Transfer of Property Act, 1882 (IV of 1882), or the Indian Registration Act, 1908 (XVI of 1903), such property shall vest in the village panchayat.
(2) Every work constructed by a panchayat out of its fund, or with Government assistance or people's participation shall vest in the panchayat.
110. Limitation on power of panchayat to transfer immoveable property.-(1) Subject to the provisions of sub-section (2) no lease, sale or other transfer of any immoveable property vesting in, or acquired by a panchayat shall be valid unless such lease, sale or other transfer has been made with the previous sanction of the competent authority.
(2) In the case of a lease of immoveable property other than the property vesting in the panchayat under section 108, no such previous sanction shall be necessary, if the period of lease does not exceed three years."
'Competent authority' is defined under Section 2(4) of the Act as under :
'Competent authority' means such Government Officer, panchayat or authority as the State Government may, by notification in the Official Gazette appoint to perform the functions of a competent authority under such provisions of this Act and in respect of such panchayats as may be specified in the said notifications;
Explanation.-
For the purposes of this clause, a Government Officer includes a Government Officer posted under a panchayat under sections 136, 161 or 232."
On bare perusal of these provisions of the Act, it is clear that under Section 108(1) of the Act, the State Government may, subject to such conditions and restrictions as it may think fit to impose, vest in a panchayat any property in the village vesting in the Government.
Section 108(4) of the Act also provides that it shall be lawful for the State Government to resume, at any time, such land vested by Government in a panchayat if it is required by it for any public purpose. So far as the other property of Village Panchayat is concerned, the Taluka Panchayat or the District Panchayat may, from time to time, direct that any property vesting in it shall vest in a Village Panchayat and thereupon notwithstanding anything contained in the Transfer of Property Act or the Indian Registration Act, such property shall vest in the Village Panchayat.
Section 110 imposes a limitation on the power of Panchayat to transfer immovable property. Section 110 makes it very clear that subject to the provisions of sub-section (2), no lease, sale or other transfer of any immovable property vesting in, or acquired by a panchayat, shall be valid unless such lease, sale or other transfer has been made with the previous sanction of the competent authority.
Bare perusal of above provisions of the Act makes it abundantly clear that panchayat can never be said to be the owner of any land. Section 37 of the Bombay Land Revenue Code makes it absolutely clear that all lands wherever situated, which are not the property of individuals, or of aggregate of persons legally capable of holding property, shall be the property of the Government and it is only the Collector, subject to the orders of the State Government, who is empowered to lawfully dispose of them in such a manner as he may deem fit, or as may be authorized by general rules sanctioned by the Government concerned. Therefore, it is fallacious to contend that panchayat being the owner of the land could have allotted the land to different individuals and institutions by just passing a resolution without seeking any permission from the competent authority, namely, the Collector or any other officer empowered in this regard by the State Government. Panchayat cannot take shelter of the fact that the land which was acquired was ordered to be merged with the 'gamtal' of Adhoi village. Just because 300 acres of land acquired under the acquisition proceedings initiated by the State Government was ordered to be merged with the 'gamtal' of village Adhoi will not make the Panchayat the owner of the land.
In the present case, even if it is assumed that the land in question belongs to the Panchayat and that the State Government had not vested the same in the Panchayat so that it could resume the land under Section 108(4), the Adhoi Gram Panchayat could not have allotted the land on any condition, be it a lease, sale, etc. without the previous sanction of the competent authority. Clause (2) of Section 110 also makes it clear that in the case of a lease of immovable property other than the property vesting in the Panchayat under Section 108, no such previous sanction shall be necessary from the competent authority if the period of lease does not exceed three years.
We have no hesitation in coming to the conclusion that the Government of Gujarat is the true owner of 300 acres of land which was acquired by it under the land acquisition proceedings, and if any surplus land was to be utilized for any public purpose, then the same could have been done only by the State Government and not by the Panchayat on its own. This is the consistent stand even of the State Government which includes the District Development Officer as well as the Taluka Development Officer of the area in question.
Since the Panchayat had no power or any authority under the law to dispose of the land in the manner as it has been done in favour of individuals and institutions, the construction which has been put up can be termed as per se illegal and unauthorized and no right, title or interest can be said to have been created in favour of any of such individuals or institutions. If that be the case, then the only manner in which the land can be restored to its original position would be by asking the individuals-allottees to remove the construction, failing which, the authorities shall undertake exercise in accordance with law.
We are unable to express the plight and the heart burning which those poor farmers and agriculturists must have experienced and are experiencing as on today when they must be seeing bungalows and residential complexes being constructed on their land which was supposed to be used for rehabilitation of the people who lost their houses at the time of devastating earthquake. The photographs which are on record clearly indicate that apart from temples, 'ashramshalas', 'dharamshalas' and other structures, there are bungalows as well as flats being constructed on the land in question. The question is who constructed these bungalows as well as residential complexes and how they came to be ultimately sold in favour of other parties. If there has been no outright sale as per the case of the Panchayat, then what would be the status of such people living in these bungalows and flats.
We are of the firm view that the land should have been and even as on today can be used for any other genuine public purpose which may include housing for the most lower strata of the society, but in any case, not temples, bungalows, flats, residential complexes, etc. We are hurt by the very fact as revealed from the affidavit-in-reply by the private respondents that they have spent lacs and crores of rupees in construction. If such institutions could afford to raise lacs of rupees then why should such institutions be allotted land free of cost for the purpose of temples, etc. In this country, first priority should be to provide shelter to millions of homeless people and not temples.
No consideration should be shown to any person where construction is unauthorized. This dicta is now almost bordering the rule of law. During the course of hearing, stress was laid by the respondents to exercise judicial discretion in moulding the relief inasmuch as asking the Government to regularize such allotments and constructions. Such a discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorized construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. As observed by the Supreme Court in the case of M.I.Builders Private Limited v/s. Radhey Shyam Sahu and others, reported in (1999)6 SCC 464, Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles. As a matter of fact, the State Government ought to have acted very promptly and should not have allowed to perpetuate such illegality to this level. In any case, now atleast having realized, we expect the authorities of the State Government to promptly get into action and see to it that immediately action is taken for demolition of such illegal constructions, if not demolished by the individuals or institutions within a prescribed period of time as may be directed by this Court.
In a Public Interest Litigation, the interest of the public should be uttermost in the mind of the Court and not the interest of a section of public as, usually, a Public Interest Litigation is entertained by a Court for the purpose of redressing public injury, enforcing public duty, protecting social rights and vindicating public interest. The real purpose of entertaining such application is the vindication of the rule of law, effective access to justice to the economically weaker class and meaningful realization of the fundamental rights.
In the aforesaid view of the matter, we hold that this petition in the nature of a Public Interest Litigation should succeed, whereas all other writ petitions preferred by individual-respondents against the proposed action sought to be initiated by the authorities for demolition of the construction deserve to be rejected as no relief can be granted in favour of persons who have no regard for law and are accordingly ordered to be rejected.
We dispose of this petition with the following directions :
The respondents in whose favour land came to be allotted by the Panchayat and upon such allotment whoever has made construction of any nature be it a temple or 'ashramshala' or a bungalow or a flat or residential complex are directed to remove the construction. For this purpose the Collector, Kutch-Bhuj, District Kutch shall prepare a list of all allottees and actual occupiers of the premises and serve individual notice to such persons within a period of fortnight and also affix the notice at a conspicuous part of each of the premises directing them to remove the construction within six weeks from the date of the notice at their cost.
In the event if the respondents fail to remove the construction on their own within the stipulated period as fixed above, then in that case, the Collector, Kutch-Bhuj, District Kutch shall see to it that all such constructions are demolished with the help of State machinery and the cost of which shall be recovered from the individual-allottees within a period of four weeks thereafter.
The Collector, Kutch-Bhuj, District Kutch is hereby directed to see that after the structures are erased/removed, vacant possession of the land is taken over by drawing necessary panchnama.
Even if the construction has not been put up and the land is vacant, then in that case, the Collector, Kutch-Bhuj, District Kutch shall takeover the possession of vacant land by drawing a panchnama.
The Secretary, Revenue department and the Secretary, Panchayat department shall jointly constitute a committee under their supervision to fix the liability of the erring officers responsible for such arbitrary and highhanded action of allotting land by keeping the State Government and other authorities completely in dark. This exercise shall be undertaken and completed within a period of three months from today.
With the above observations and directions, these petitions are accordingly disposed of. However, on the facts and in the circumstances of the case, there shall be no order as to costs.
In view of the judgment pronounced today, disposing of the substantive petitions, the connected Misc. Civil Application, if any, also stands disposed of accordingly.
Before parting, we may sound a note of caution that the judgment of the Apex Court as expressed in the case of Dr.G.N.Khajuria v/s. Delhi Development Authority, reported in AIR 1996 SC 253, continues to hold the field. Officers who refuse to discharge their functions and/or allow mushrooming of illegal constructions when the same is brought to their knowledge, would be liable for action, including disciplinary action.
(Bhaskar Bhattacharya, Acting C.J.) (J.B.Pardiwala, J.) /moin Top