IN THE HIGH COURT OF GUJARAT AT AHMEDABAD WRIT PETITION (PIL) No. 141 of 2011 WITH MCA NO.3009 OF 2011 WITH CA NO.11792 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 ?
Whether this case involves a substantial question of law as to the
4 interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================= RAJPUT DALPUJI HARIJI & OTHERS Versus STATE OF GUJARAT & OTHERS ========================================= Appearance :
MR ADIL MEHTA for the Petitioners MR PK JANI, Government PLEADER for the Respondent No.1 MR HS MUNSHAW for the Respondent Nos.6 and 8 MR RS SANJANWALA with MR HARDIK P MODH for the Respondent No.9 =========================================
CORAM : HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA
and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 8 /11/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. This writ petition, under Article 226 of the Constitution of India, in the nature of a public interest litigation, is at the instance of few villagers of village Tarabh, situated in Taluka Visnagar of District Mehsana, as they are aggrieved by the action and the decision of the State Government to allot 67 hectors of Gauchar land, forming part of survey No.159/1, in favour of the respondent No.9, the Spice Board, a Statutory Body, constituted under section 3 of the Spice Board Act, 1986, and a part of Ministry of Commerce, Government of India for the purpose of establishment of a Spice Park. The petitioners have prayed for an appropriate writ, order or direction on the respondents to declare such allotment of Gauchar land in favour of the respondent No.9 as illegal, and to back the possession of the land from the respondent No.9.
2. The case made out by the petitioners in this petition may be summarized as under:
2.1 The petitioners are local residents of Tarabh, situated in Taluka Visnagar of District Mehsana. According to the petitioners, the following block – survey numbers constitute Gauchar land in the village. The details are as under:
2.2 The grievance of the petitioners is that the Collector, Mehsana, vide order dated 17th July, 2010, allotted area of 67 hectors of Gauchar land, out of total 84 hectors of Gauchar land available in the village in favour of the respondent No.9, the Spice Board for the purpose of setting up of a Spice Park. According to the petitioners, such a decision to allot 67 hectors of Gauchar land, from a total of 84 hectors of Gauchar land available in the village, could be termed as arbitrary and irrational on the part of the State Government. It is also the case of the petitioners that there are 6465 animals in the village, out of them, 1645 are cows, 3118 are buffaloes and 1725 are sheep and goats. According to the petitioners, the only means of their livelihood is agriculture and grazing cattle. The village is now left only with 17 hectors of Gauchar land, which according to the petitioners, is very much inadequate, even as per the policy of the State Government. It is also the case of the petitioners that there is a substantial encroachment on the Gauchar land, forming part of survey No.159, and therefore, even that part of Gauchar land, illegally encroached upon by different individuals, could not be used for the purpose of grazing cattle. Under such circumstances, it has been prayed that the allotment of 67 hectors of Gauchar land, in favour of the respondent No.9, the Spice Board, be ordered to be set aside and the possession from the respondent No.9, the Spice Board be ordered to be taken over by the authorities concerned.
3. Stance of the respondent No.1, State of Gujarat.
3.1 It is the case on behalf of the State Government that the respondent No.9, the Spice Board, an undertaking of the Central Government, had requested the Collector, Mehsana, vide letter dated 20th February, 2008, to allot 100 acres of land for setting up of a Spice Park. On 10th September, 2008, a proposal was forwarded by the Collector, Mehsana to the State Government in its Revenue Department, wherein, a decision was taken to allot the land, as prayed for, by the respondent NO.9 at the rate of Rs.810/ per sq mtr. However, the respondent No.9, the Spice Board, expressed its willingness to take the land only at the price of Rs.50/ per sq mtr. As the respondent No.9, the Spice Board, was not ready and willing to pay the market value fixed by the District Valuation Committee, vide letter dated 18th September, 2008, the request of the Spice Board, for such allotment, was rejected by the State Government. It is also the case of the State Government that, as the request for grant of the land for setting up of the Spice Park was rejected on 18th September, 2008 only on the technical ground of unwillingness on the part of the Board to pay the market price, the matter was again taken up for reconsideration by the State Government. The matter was taken up for reconsideration on the ground that, if the land, as prayed for, by the respondent No.9, the Spice Board, is allotted at the rate, on which the Board was willing to accept, even then under such circumstances, the State Government would be benefited, as the total investment in the project was approximately Rs.100 Crore. On such reconsideration, the State Government decided to allot the land in favour of the respondent No.9, the Spice Board, at the rate of Rs.50/ per sq mtr. The State Government also took into consideration the fact that the Spice Board had decided to set up six such Spice Parks in India, and one of the State chosen, was the State of Gujarat. The State Government also took into consideration the fact that the Government of Andhra Pradesh, the Government of Tamilnadu and the Government of Rajasthan had already allotted the land in favour of the respondent No.9, the Spice Board, without charging any amount for the land.
3.2 It is also the case of the State Government that before taking a final decision to allot the land at village Tarabh, the views of the Tarabh Gram Panchayat were also invited and the Tarabh Gram Panchayat, vide its resolution dated 15th May, 2009, had informed the State Government that they had no objection, if the land was granted to the respondent No.9, the Spice Board. The State Government thereafter, before passing any final order, asked the Board to deposit 30% amount of Rs.1,01,03,325/ towards Gauchar Improvement Charges. Such Gauchar Improvement Charges were paid by the respondent No.9, the Spice Board, on 7th April, 2010. Thereafter, on 7th April, 2012, an amount of Rs.3,36,77,750/ was also deposited with the State Government. Finally, pursuant to the decision taken in the Cabinet dated 20th January, 2010, the consequential order of allotment was passed by the Revenue Department on 30th January, 2010.
4. Stance of the respondent No.9, the Spice Board.
4.1 It is the case on behalf of the respondent No.9, the Spice Board, that Gauchar land, admeasuring 67 Hectors of village Tarabh of District Mehsana, forming part of survey No.159/1, was allotted way back in July, 2009 by the State Government, after following due procedure, as required under the law. According to the respondent No.9, the petition deserves to be rejected solely on the ground of delay and laches.
4.2 According to the respondent No.9, the petition, questioning allotment of the Gauchar land, is grossly belated, more particularly, when the development work, or the land in question, has already commenced. It is the case of the respondent No.9, that, it is a statutory body, constituted under Section 3 of the Spice Board Act, 1986, and is a part of Ministry of Commerce, Government of India, and is the flagship organization for the development and worldwide promotion of Indian Spices all over India. It is an autonomous body, responsible for the export promotion of the Scheduled spices and production development of some of them, such as Cardamom. The respondent No.9, the Spice Board, is governed by a 32 Members governing body constituting of representatives of the House of People, the House of States, the State Government, a Certain Government Ministry, the Planning Commission, the Plantation Labour, the Spice growers, the Processors and Exporters and specialist organization, such as Central Food Technology Research Institute and Indian Institute of Packaging. The Spice Park would function as a fulcrum for the development of Spice Industries. The basic objective of the concept is to provide common infrastructure facilities for both the post harvest and the processing operation of Spices, which aims to backward integration by providing rural employment.
4.3 All Spices Parks will have processing facilities at par with the international standards, in which the produces could undergo cleaning, grading, grinding, packaging etc. Apart from the above facilities, the respondent No.9 will develop the common infrastructure facilities like roads water supply systems, power stations, fire fighting and control systems weighing bridges, effluents treatment plants, bank and post office counters, restaurants, business centers etc.
4.4 The Spices Park will also render educative services to the farming/trading community. The Spice Park shall provide training programmes to the farmers on good agricultural practices, the post harvest operations, the advanced processing practices and global food safety and quality standards.
4.5 The establishment of Spice Parks, in the country, is a major initiative of the Government, as a part of its commitment, that any growth in the country should be more of agriculture specific and pro farmers. The Spice Park ensures a better pricing for the produce by eliminating unnecessary channels in the supply chain system currently followed locally for trading of spices. The facilities available in the Spice Park could be utilized by the farming community for trading of their produce by improving the quality of the product and directly to the exporters. Hence the farmer community will get premium price for their produce.
4.6 It is the case of the respondent No.9, that establishment of a Spice Park on the disputed land is for a public purpose. The revenue generated from activities undertaken will be used for the purpose mentioned under section 21 of the Spice Board Act, 1986.
4.7 The Spice Board has formulated Plantation Welfare Scheme which is used for providing grant in aid to various institutions.
4.8 The Spice Board has already set up Spice Parks at Chhindwara in Madhya Pradesh for Garlic & Chilly, and at Puttady in Kerala for Pepper & Cardamom, whereas Spices Parks at Guntur in Andhra Pradesh for Chilli, and at Jodhpur in Rajasthan for Cumin.
4.9 Considering the object of the Spice Board, an inquiry was initiated in the year 2009 for development of Spice Park in the State of Gujarat. For this purpose, the respondent No.9 had appointed M/s. KITCO, as the consultant of the project. After a detailed inquiry, the land in question was found suitable for attaining the object of the Spice Board. The respondent No.9 took steps to make investment for the development of Spices Park on the land in question. The total investment, till this date, has been to the tune of approximately Rs. 5 Crore. The respondent No.9 has already awarded the contract for the civil work to one M/s. Tirupati Sarjan Ltd. at a total estimated cost of Rs.
11.59 Crore, which had to be cancelled due to the present litigation, pending before this Court.
4.10 The land in question was allotted on 17th July 2010, after following due process of law.
4.11 The respondent No.9 has paid a sum of Rs. 4,78,22,405/ towards cost of land including Rs. 1,01,03,324/ towards premium at the rate 30 % of the allotment price, as per resolution dated 27th January 1999 of the State Government for allotment of Gaucher land and a sum of Rs. 40,41,330/ towards the transformation cost.
4.12 The respondent No.9 has denied the fact that, out of 84 hectors of the Gauchar land available in the village, the village is left only with 17 hectors of grazing land after the allotment of the land in favour of the respondent No.9, Board. According to the respondent No.9, the reliance placed by the petitioners, on the report dated 18th September, 2011 given by Shri Tarabh Milk Producers Sahakari Mandali Limited, and the allegation of inadequacy of the gauchar land, is completely misplaced, unjustified and not admitted. According to the respondent No.9, the report has not given detailed base for census of cattle and has not given details of useless cattle, like the cattle belonging to the professional grazers or professional cattle breeders or commercial dairies, and the cattle used for the purpose of business for example ponies, exclusively used for Tongas, or bullocks, exclusively used for carts plying for hire, as required under the Government resolution dated 14th November, 1950.
4.13 It is also the stance of the respondent No.9, Board, that the land in question will be used for ‘public purpose’ and is likely to sub serve a larger public interest of the nation. The Spice Board Act, 1986 is a Central enactment and provides for a complete code for setting up of the Spice Park, for the purpose of giving a boost to the industrialization and development of the nation at large.
4.14 The respondent No.9 has denied that processing of Red Chillies and other Spices would cause air pollution. It is the case of the respondent No.9 that the Spice Park in Gujarat is going to be developed mainly for cumin, fennel & coriander, and therefore, no air pollution would be caused. The respondent No.9, Board, has also undertaken to strictly adhere to the terms and conditions imposed by the Gujarat Pollution Control Board from time to time, so far as the issue of air pollution is concerned.
4.15 Under the aforesaid circumstances, the petition is without any merit and deserves to be rejected.
5. Stance of the respondent No.8, Sarpanch, Tarabh Gram Panchayat
5.1 According to the respondent No.8, the total area of the Gauchar land with Tarabh Gram Panchayat is 85.02 hectors and it is spread over nine revenue survey numbers. The revenue survey No.159 (paiki)1 of village Tarabh has been allotted to the Spice Board admeasuring 67.35.55 hectors. The balance area admeasuring 17.45 hectors approximately is spread over in the other eight survey numbers, and is used as a Gauchar land, but, there are in all 132 encroachments on the revenue survey No.159 (apiki) 1 allotted to the Spice Board and around seventy odd encroachments on the rest of the Gauchar land. As per the record of the Gram Panchayat, there are in all 34 encroachments in the Gamtal land. It is the stance of the respondent No.8, that earlier notices were issued to all the encroachers of the revenue survey No.159 paiki 1 by the Gram Panchayat for removal of encroachments, but neither the encroachers vacated the land, nor the Gram Panchayat took any further action in that regard. The respondent No.8 has undertaken to remove all the encroachments on or before 30th September, 2012, after following the due procedure, as laid down under the provisions of section 105 of the Gujarat Panchayats Act, 1993. According to the respondent No.8, as most of the encroachers are poor villagers, it would not be advisable to remove them during the rainy season, and therefore, prayed time before this Court to remove the encroachments by 30th September, 2012. It is also the stance of the respondent No.8, that the total population of village Tarabh is 4926, as per the Census of the year 2001, and the population of the livestock is 3890, as per the Census of the year 2007.
6. We have heard Mr. Adil P. Mehta, the learned advocate appearing for the petitioners, Mr. Prakash K. Jani, the learned Government Pleader appearing for the State Government, Mr. Rasesh S. Sanjanwala, the learned senior counsel appearing for the respondent No.9, the Spice Board and Mr. H.S. Munshaw, the learned advocate appearing for the respondent Nos.6 and 8 at length.
7. 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 busybody of meddlesome interloper 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 busybodies 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;
(x) 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, busybody or persons or groups with mala fide objective of either for vindication of their personal grievance or by resorting to blackmailing or considerations extraneous to public interest.
8. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question, that falls for our determination, in the present petition, is as to whether, the allotment of 67 hectors of the Gauchar land by the State Government in favour of the respondent No.9, the Spice Board, for the purpose of setting up of a Spice Park, should be ordered to be cancelled, and whether the respondent No.9, the Spice Board, should be directed to hand over the possession of the land in question to the State Government.
9. In the facts and circumstances of the case, we are not inclined to enter into the merit of the legality and validity of the order of the allotment of the land in question in favour of the respondent No.9, the Spice Board, only on the ground of delay in filing this petition. We are inclined to dismiss this petition solely on the ground of delay, taking into consideration the following aspects.
(1) The order of allotment of the land in question was passed way back on 17th July, 2010. Pursuant to the order of allotment of the land in question, the respondent No.9 deposited a sum of 30% of the amount of Rs.1,01,03,325/, as Gauchar Improvement Charges, on 7th April, 2010, and on the very same day, also, deposited a sum of Rs.3,36,77,750/ towards the total cost of the land. The total investment in the entire project would be of around Rs.100 Crore. The possession of the land was also handed over to the respondent No.9, the Spice Board, way back in the year 2010. The respondent No.9, in all, has paid a sum of Rs.4,78,22,405/, towards the cost of the land, including Rs.1,01,03,325/ towards premium at the rate of 30% of the allotment price for cattle farm renovation, as provided by the resolution of the State Government dated 27th January, 1999 and a sum of Rs.40,41,330/ towards transformation cost.
(2) On the other hand, the petition was preferred almost after a period of more than one year, i.e. sometime in the month of October, 2011. There is no explanation, worth the name, as to why the petition was not preferred in time.
(3) By now, it is a well settled principle of law, that this sacrosanct jurisdiction of public interest litigation should be invoked very sparingly and in favour of the vigilant litigant. The power of the High Court to be exercised under Article 226 of the Constitution, being discretionary, its exercise must be judicious and reasonable. The persons seeking relief against the State under Article 226 of the Constitution, be they citizens or otherwise, cannot get discretionary relief, obtainable thereunder unless they fully satisfy the Court that the facts and circumstances of the case clearly justified the laches or undue delay on their part in approaching the Court for grant of such discretionary relief.
(4) Therefore, as observed by the Supreme Court in the State of Maharashtra Vs. Digambar, 1995 (4) SCC 683, that where the High Court grants relief to a citizen or any other person under Article 226 of the Constitution against any person including the State without considering his blameworthy conduct, such as laches or undue delay, acquiescence or waiver, the relief, so granted, becomes unsustainable, even if, the relief was granted in respect of the alleged deprivation of his legitimate right by the State. The Supreme Court proceeded to observe that delay is a very important factor while exercising extraordinary jurisdiction under Article 226 of the Constitution, and the third party interest, created on account of delay, cannot be disturbed.
(5) Reference could also be made to the observations passed by the Supreme Court in the case of Delhi Development Authority Vs. Rajendra Singh and others, (2009) 8 SCC 582, made in para Nos.52 and 53, which are as under:
“52. In Narmada Bachao Andolan v. Union of India, SCC para 229, this Court has held that PIL should be thrown out at the threshold if it is challenged after the commencement of execution of the project. It was also held that no relief should be given to persons who approach the Court without reasonable explanation under Articles 226 and 32 after inordinate delay.
53. We reiterate that the delay rules apply to PILs also and if there is no proper explanation for the delay, PILs are liable to be summarily dismissed on account of delay. In the case on hand, it is not in dispute that both the petitioners though claiming that they are very much conversant with environment and ecology, approached the High Court only in the middle of 2007, hence on the ground of delay and laches, the writ petitions were liable to be dismissed.”
10. Thus, on the ground of delay itself, we are not inclined to entertain this petition and accordingly, the petition is rejected with no order as to costs. The interim order of status quo, passed earlier, stands vacated forthwith.
11. Before parting, we would like to remind the respondent No.8, Tarabh Gram Panchayat of its undertaking given before this Court in its affidavitinreply dated 21st July, 2012, as regards removal of the encroachments on or before 30th September, 2012. We are not aware as to what is the position, as on today, as 30th September, 2012 has already passed. However, we once again direct the respondent No.8 to ensure that each and every encroachment, on any part of the Gauchar land of the village Tarabh, is removed and the possession of such land is taken over by the Gram Panchayat, in accordance with law. We also direct the Collector, Mehsana to ensure that the Tarabh Gram Panchayat of Taluka Visnagar takes appropriate steps to remove each and every encroachment from the Gauchar land or the Gamtal of the village Tarabh, if such action has not been taken till this date. The respondent No.8 shall place on record the report as regards removal of encroachment before this Court after a period of one month from today. Registry is directed to notify this matter on 26th November, 2012 before this Court to report compliance of our directions.
12. We also make it clear, by way of directions that, there shall not be any further allotment of the Gauchar land, even if, it is required for a genuine, or a bona fide public purpose.
13. In view of the order passed in the main matter, the connected civil applications, if any, are rendered infructuous, and are accordingly, disposed of.
[BHASKAR BHATTACHARYA, CJ.] shekhar* [J.B.PARDIWALA, J.] FURTHER ORDER After this order is passed, Mr. Adil Mehta, the learned advocate appearing on behalf of the petitioners, prays for stay of the operation of this order.
In view of what has been stated above, we find no reason to stay our order. Prayer refused.
[BHASKAR BHATTACHARYA, CJ.] shekhar* [J.B.PARDIWALA, J.]