IN THE HIGH COURT OF GUJARAT AT AHMEDABAD WRIT PETITION (PIL) No. 61 of 2012 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 ?
========================================================= SHAILESH NARSINHBHAI PATEL & 7 - PETITIONER Versus DISTRICT COLLECTOR & 2 - RESPONDENT ========================================================= Appearance :
MR JV JAPEE for PETITIONER : 1 - 8. NOTICE SERVED for RESPONDENT : 1 - 3.
MR PK JANI, LD.GOVERNMENT PLEADER with MS.SHRUTI PATHAK, LD.ASST.GOVT. PLEADER for RESPONDENT : 2, ========================================================= CORAM :
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 30/08/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. By way of this writ-petition under Article 226 of the Constitution of India, in the nature of Public Interest Litigation, the petitioners have prayed for the following reliefs:
“12(A) : to issue a writ of mandamus or any other appropriate writ, order or direction and be pleased to quash and set aside the impugned order of allotment dated 4.7.2009 out of the gauchar land bearing Block No.373 of Village Khudh and also the other allotments made out of Block No.374, 364, 368, etc. in which constructions are yet to be made so as to preserve and protect a little area of gauchar land left with the village;
(B) to issue a writ of mandamus or any other appropriate writ, order or direction and be pleased to direct the respondent authorities to take appropriate effective steps to remove the encroachments in the gauchar land of village Khundh;
(C) issue a writ of mandamus or any other appropriate writ, order or direction and be pleased to direct the respondents to vest additional areas of Government land for the purpose of gauchar in view of the requirement of the village Khundh taking into account the present cattle population of the village;
(D) to take appropriate steps to stop and prevent the construction in the gauchar lands bearing Block No.373, 374, 364 and 368 pursuant to the allotments already made, pending the admission, hearing and final disposal of this petition;
(E) to direct the respondents to forthwith take appropriate effective steps to remove the encroachments upon the gauchar land, pending the admission, hearing and final disposal of this petition;
(F) to pass such other and further order as the nature and circumstances of the case may be required.”
2. The case as made out by the petitioners in this petition may be summarised as under :
2.1 The petitioners are the residents of village Khundh, Taluka Chikhli, District Navsari. They earn their livelihood by doing agricultural operations and also by supplying milk of their cattle. The petitioners are aggrieved by the fact that the respondent No.1-Collector, Navsari vide order dated July 04, 2009, has allotted the 'Gauchar' land admeasuring Hectares 00-75-22 square metres out of the land bearing Survey No.373 for the construction of building of Women Protection Centre and Child Centre.
2.2 It is their case that by utilizing the said land for the purpose of such a project, there will be substantial reduction in the 'Gauchar' land which is otherwise much less than the actual requirement considering the number of cattle in the village. It is the case of the petitioners that after the allotment of 'Gauchar' land for the building of Women Protection and Child Centre, the village will be left with only 12 Hectares of 'Gauchar' land, as against the requirement of 256 Hectares considering the cattle population of 1637 in the village.
2.3 It is the case of the petitioners that under such circumstances, they were left with no other option but to approach this Court by way of this public interest litigation.
This is the substratum of the case of the petitioners.
CONTENTIONS ON BEHALF OF PETITIONERS :
3. Mr.J.V. Jappi, learned counsel appearing on behalf of petitioners, vehemently submitted that the respondent No.1- Collector, Navsari, ought not to have allotted 'Gauchar' land for construction of building for Women Protection Centre and Child Centre. Mr.Jappi submitted that another land could have been allotted for such construction but at least not the 'Gauchar' land. Mr.Jappi submitted that even the Supreme ourt in the case of State of Jharkhand and others v. Pakur Jagran Manch and others, reported in (2011) 2 SCC 591, has taken a view that dereservation of any Government land reserved as 'Gauchar' should only be in exceptional circumstances and valid reasons. Mr.Jappi, therefore, urged that this is a fit case to set aside the order of allotment passed by the respondent-Collector, Navsari.
4. Having heard the learned counsel appearing for the respective parties and having gone through the materials on record, we find that construction of building for Women Protection Centre and Child Centre could also be said to be a laudable public purpose. The allotment of land is not in favour of an individual for his personal gain or profit. At times, in absence of any other suitable land, the authorities may have to take a decision to use some portion of the 'Gauchar' land for any other laudable purpose like building for Women Protection Centre and Child Centre. We have also noticed that the area which has been allotted is not so huge that it has deprived the villagers of almost entire 'Gauchar' land available in the village. As per the case of the petitioners themselves, after the allotment of land for construction of Women Protection Centre and Child Centre, the village is left with 12 Hectares of 'Gauchar' land.
5. There is one more reason as to why we are not inclined to entertain this matter. The reason is gross and inordinate delay on the part of the petitioners in approaching this Court. The petitioners are challenging the order passed by the respondent-Collector, Navsari, way back in the year 2009. Almost three years have elapsed. In the petition, however, the petitioners have tried to explain the delay by a mere bald assertion that they learnt about the order only in the year 2012. We are not satisfied with such an explanation.
6. So far as the decision relied upon by Mr.Japee of the Supreme Court in the case of State of Jharkhand (supra) is concerned, we may only say that we had an occasion to deal with this decision in one another petition, wherein the issue was almost similar i.e. allotment of 'Gauchar' land. We propose to rely on the following observations made by this very Bench while deciding Writ Petition (PIL) No.155 of 2011, decided on August 06, 2012 :
“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.”
7. So far as the grievance of the petitioners as regards sufficient area of 'Gauchar' land is concerned, considering the number of cattle in the village, we would like to rely upon the following observations made by this very Bench in Writ Petition (PIL) No.155 of 2011 :
“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.”
8. For the reasons aforesaid, we do not find any merit in this petition and the same is, accordingly, dismissed with no order as to costs.
(Bhaskar Bhattacharya, Chief Justice)
(J.B. Pardiwala, J.)
Aakar