IN THE HIGH COURT OF GUJARAT AT AHMEDABAD WRIT PETITION (PIL) No. 55 of 2011 With CIVIL APPLICATION No. 1436 of 2012 In WRIT PETITION (PIL) No. 55 of 2011 For Approval and Signature:
HONOURABLE THE ACTING 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 ?
========================================================= SUMARA MOHMAD IDRISH MAHEBUBMIYA & 4 - PETITIONER Versus STATE OF GUJARAT & 3 - RESPONDENT ========================================================= Appearance :
MR KIRTIDEV R DAVE for PETITIONER : 1 - 5.MR RAHUL K DAVE for PETITIONER : 1 - 5.
MR JK SHAH AGP for RESPONDENT : 1 - 3. NOTICE SERVED for RESPONDENT : 4, NOTICE SERVED BY DS for RESPONDENT : 4, ========================================================= CORAM :
HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date :30/04/2012 CAV JUDGMENT (Per : HONOURABLE MR JUSTICE J. B. PARDIWALA)
1. This petition under Article 226 of the Constitution in the nature of a Public Interest Litigation has been preferred by petitioners who are residents of village Prantij, District Sabarkantha, and have prayed for the following reliefs:
“12 (a) Your Lordships be pleased to admit this petition.
(b) Your Lordships be pleased to issue appropriate writ or mandamus or any other writ order or direction holding that the action of the respondents to take away the land bearing S. No. 990(A) of Prantij from the use of Gauchar is illegal and unconstitutional.
(c) Your Lordships be pleased to issue appropriate writ or mandamus of any other writ order or direction that the land bearing S. No. 990(A) of Prantij be kept for the use of Gauchar only.
(d) Your Lordships be further pleased to direct the parties to maintain status quo of the land in question pending admission, hearing and final disposal of this petition.
(e) Your Lordships be pleased to grant any other relief/s, as may be deemed fit and necessary in the facts and circumstances of the case.”
2. The facts relevant for the purpose of deciding this petition may be summarized thus:
The petitioners as residents of village Prantij are very much concerned about land bearing survey no. 990(A) of Prantij Town. Deputy Collector, Modasa passed an order granting lay out plan so far as land bearing survey no. 990 (A) is concerned. Record reveals that first in point of time, the petitioners had preferred Special Civil Application no. 21978/2005 redressing the grievances so far as the lay out plan, which was sanctioned by the Deputy Collector with respect to land bearing survey no. 990 (A) is concerned. Learned Single Judge vide order dated 13/2/2006, disposed of the petition by issuing appropriate direction. The order passed by learned Single Judge dated 13/2/2006 in SCA no. 21978/2005 is reproduced herein below for the sake of convenience:
“1. In response to the Notice, learned Advocate Mr. Jaypee appearing for Prantij Nagarpalika submitted that the impugned Resolution passed by the Prantij Municipal Bureau is only authorizing the Officers of the Municipal Bureau to initiate action for categorizing the land bearing Survey No. 980 admeasuring 2 hectors as Gamtal land. He submitted that for the said purpose, proposal has been made to the State Government. So far no final decision has been taken by the competent authority in this regard. He further submitted that there is no cause of action for filing the present petition.
2. Considering the above submissions the petition is disposed of by providing that if the Pranjit Muncipal Bureau approaches the competent authority under the State Government for categorizing the land in question as Gamtal land, the petitioners will have an opportunity of making representation to such proposal. For the above purpose, the Municipal Bureau shall intimate to petitioner No.1 on behalf of all the petitioners of such development. If any of the petitioners makes representation raising objections to such proposal, the authority will consider the same before taking any final decision. With these directions, the petition is disposed of. Notice discharged.“
3. It appears that after the order was passed by learned Single Judge of this Court, Deputy Collector, Himmatnagar passed an order dated 24/5/2007 for grant of lay out plan. This order was again made a subject matter of challenge before this Court by way of Special Civil Application No. 13446/2010. Learned Single Judge of this Court disposed of Special Civil Application No. 13446/2010 vide order dated 12/10/2010 in following terms:
1. By way of this petition, the petitioners have prayed for the following reliefs :-
2. “[A] The Hon'ble Court may be pleased to admit this petition.
[B] The Hon'ble Court may be pleased to issue a writ of mandamus or any other appropriate writ or order or direction, directing respondent no. 2 Collector to take decision as per order dated 13.02.2006 passed by this Hon'ble Court in Special Civil Application No. 21978 of 2006 by quashing and setting aside the order dated 24.05.2007 passed by the Deputy Collector, Himmatnagar and further be pleased to restrain them before putting up any construction and/or using the land in question in any other manner in the interest of justice.
[C] Pending admission, hearing and final disposal of this petition, the Hon'ble Court may be pleased to restrain the respondent no. 2 or its servant or agent from putting up any type of construction in the land bearing Survey No. 990A of Mouje Prantij, District Sabarkantha and further be pleased to stay the order dated 24.05.2007 passed by the Deputy Collector Himmatnagar in the interest of justice.
[D] ”
2. Heard learned counsel for the respective parties. If the petitioners are aggrieved by the order passed by the Deputy Collector, there is a statutory remedy available to the petitioners. Looking to the facts of the case, and in view of the fact that the petitioners have a statutory remedy available, it will not be proper to entertain this petition almost after a period of three years. Hence, the petition is dismissed.”
4. Pursuant to the order passed by learned Single Judge in Special Civil Application no. 13446/2010 dated 12/10/2010, the petitioners approached Special Secretary (Appeals) Revenue Department by way of Revision Application. However, it is the case of the petitioners that they were informed that they have to file an Appeal before the Collector. Accordingly, the petitioners preferred Appeal before the Collector, Sabarkantha. It is the case of the petitioners that for a period of about two months, the Collector did not register the appeal and even no formal number was given to the Appeal. It appears that once again the petitioners approached this Court by way of Special Civil Application no. 1232/2011. Learned Single Judge of this Court vide order dated 22/2/2011 disposed of the petition observing as under:
“1. Ms. Jirga Jhaveri, learned Assistant Government Pleader appearing on behalf of Collector, Sabarkantha under the instructions of Shri J.S. Yadav, Deputy Collector, Himatnagar has stated at the Bar that Appeal preferred by the petitioners is registered as Appeal No.2/2011 and next date of hearing is kept on 7th March 2011. Shri Kirtidev Dev, learned advocate appearing on behalf of the petitioners has stated at the Bar that if suitable direction is issued directing the Collector, Sabarkantha to decide and dispose of the said Appeal at the earliest, petitioners will be satisfied.
2. In view of the above and without expressing anything on merits in favour of either parties, Collector, Sabarkantha is hereby directed to decide and dispose of the Appeal No.2/2011 at the earliest after giving opportunity to all concerned.
3. With this, present petition is disposed of. Direct service is permitted.”
5. The Collector, Sabarkantha, thereafter, dismissed the appeal preferred by the petitioner vide order dated 13/3/2011. It is at that stage that the petitioners once again thought fit to approach this Court by way of this petition.
6. According to the petitioners, the land in question i.e. Survey No. 990(A) is being used as “Gauchar land”. As per the policy of the State Government, 100 Acres of land is required as Gauchar for 40 cattle. It is also the case of the petitioners that land in question is forming way to the waterbody and the said waterbody is known as “Bokh”. According to the petitioners, it is Nimla Dam over Hathmati River. The road, which is constructed for the passage to disputed land is passing through the Bokh. The petitioners have relied upon a map to show that the Bokh in survey no. 1056 is adjoining survey no. 990 (A). As per the say of the petitioners, there is no other way to survey no. 990(A) except Bokh. Therefore, this is a case of invasion over the waterbody.
7. In short the petitioners are aggrieved by the decision of the authorities in curtailing the Gauchar Land. According to the petitioners, there are three parcels of land being survey no. 990(A), 486 (2) and 960 reserved for the use of Gauchar Land. If 990 (A) is being taken away, then very small area of land will be available as Gauchar. There are around 8000 to 10,000 cattle in Prantij Town and total population of Prantij is about 35,000. The municipality proposes to construct small houses for poor class of people on the said survey no. 990(A). According to petitioners, such houses can be constructed on Government waste land, which is very much available in Prantij.
8. It is in this background that the petitioners are here before us seeking appropriate writ upon the respondents to declare the action of the respondents in taking away land bearing survey no. 990(A) of Prantij from the use of Gauchar as illegal and unconstitutional.
9. Notice was issued on the respondents and in response to the notice issued, the respondents have appeared and have opposed this petition by filing affidavit in reply. The stand taken by the respondents in their affidavit in reply is that before more than 37 years the Collector vide order dated 09.09.1973 was pleased to delete the survey no. 990 (A) of Prantij admeasuring 7 acres and 1 guntha and was taken to the head of Government and thereafter, by order dated 16.08.1973 Survey No. 990(A) admeasuring 7 acres and 1 guntha was designated as Gamtak Land. According to respondents before 37 years the orders were passed designating land of Survey No. 990(A) admeasuring 7 acres and 1 guntha as Gamtal Land. The proposal was forwarded by Nagarpalika on 16.04.2007 to allot the land of Survey No. 990(A) by making plots admeasuring 25. sq. meters. The layout was sanctioned by Deputy Collector vide order dated 24/5/2007.
10. It is the case of the respondents that the petitioners and others had filed an appeal before the Collector, Sabarkantha challenging the legality and validity of the order dated 16.08.1973 passed by Deputy Collector, Modasa and the order dated 24.05.2007 passed under section 203 of Bombay Land Revenue Code. The appeal came to be registered as Appeal/Case No. 02 of 2011. After considering all relevant aspects, the Collector was pleased to dismiss the appeal against which the remedy is by way of revision under Section 211 of the Bombay Land Revenue Code.
11. It is also the stand of the respondents that the orders dated 16.08.1973 and 09.09.1973 were passed in accordance with law and after taking into consideration all relevant aspects. Therefore, the petitioners after 37 years cannot contend that there will be curtailment of gauchar land for cattle. According to the respondents, as per the Resolution dated 05.10.1970 the land granted to the Prantij Nagarpalika is vested in the State Government and the revenue entry is also reflected by entry no. 10809 dated 10.5.2001.
12. It is also denied emphatically by the respondents that road towards survey no. 990(A) is passing through a waterbody. According to the respondents the benefit of allotment of 25 sq.mts of land will be extended to the poor and lower strata class of society of village Prantij and if the situation demands, even the Gauchar land can be put to use for any other purpose. According to the respondents, it is within the powers of the State Government as per the policy to always designate or redesignate the land for any other purpose as and when it is required.
13. Having heard learned counsel for the respective parties and having gone through the materials on record, we find that issue in question has been considered at length by the Revenue authorities viz. the Collector, Sabarkantha. This particular land in question for which grievance has been raised is ultimately going to be used for the benefit of poor and down trodden class of society. It appears that area of 25 sq.mt land will be alloted to such class of people, who would be able to get shelter for themselves. This decision of the authorities cannot be held to be arbitrary and based on no reason whatsoever but even on mere ipse dixit of the said authorities. The Executive Authority of the State must be held to be within its competence to frame a policy for the administration of the State. Unless the decision of policy framed is absolutely capricious and not being informed by any reason whatsoever, can be clearly held to be arbitrary and founded on mere ipse dixit of the execution functionaries thereby offending Article 14 of the constitution or such policy offending other constitutional provisions or comes into conflict with any statutory provision, the Court could not and should not outstep its limit and tinker with the policy decision of the authorities of the state.
14. Having regard to all the circumstances we do not find any merits in this petition and the same deserves to be rejected. The petition is accordingly rejected. However, there shall be no order as to costs. In view of the order passed in the main petition, the connected civil application no. 1436/2012 would not survive as it is rendered infructuous.
(BHASKAR BHATTACHARYA, Actg. CJ) *asma (J. B. PARDIWALA, J)