Karadiya Rajabhai Govindbhai Dodiya Petitioner(S) v. State Of Gujarat & 5 (S)

C.L Soni, J.:— By the present petition filed under Article 226 of the constitution of India, the petitioner has challenged the order dated 23rd September, 2009 passed by the Collector in divesting the land admeasuring 2 hectares from gauchar head to Government waste land of Survey No. 115 situated in village Lathodra, Taluka Mangrol for the purpose of quarry lease to extract black trap mineral in favour of the respondent No. 6 and affirming order dated 29/07/2015 passed by the Secretary Revenue Department (Appeals) in Revision Application No. 52 of 2012 preferred by the petitioner.

2. Learned advocate Mr. Nangesh for the petitioner submitted that though no adequate gauchar land is available with the Gram Panchayat, the Gram Panchayat illegally passed resolution and gave consent to divest the land from the gauchar head to Government waste land for the purpose of quarry lease. Mr. Nangesh submitted that as against the number of cattle in the village, the gauchar land with the Gram Panchayat, is less and it will be in no breach of Government Resolution, which provides for maintaining the ratio between the gauchar land and number of cattle in village and also contrary to law laid down by this Court, of the Hon'ble Supreme Court, if gauchar land is allowed to be used for quarry lease. Mr. Nangesh submitted that though Gram Panchayat passed resolution to give only one hectare of gauchar land for the purpose of quarry lease, the Collector ordered to divest 2 hectares of gauchar land to Government waste land, whereby further deduction of the gauchar land to the extent of additional one hectare is done by the impugned order.

3. Learned advocate Mr. Dave appearing for the caveator-respondent No. 6 submitted that it is not correct to say that the Gram Panchayat agreed for only one hectare of gauchar land for the purpose of mining activity but in fact the Gram Panchayat by the subsequent resolution agreed to give 2 hectares of land, which the petitioner has not brought to the notice of this Court. Relying upon the copy of the resolution at page 150 annexed with the affidavit-in reply, Mr. Dave submitted that such resolution was considered by the authorities below while passing impugned orders. Mr. Dave submitted that the entry of the respondent No. 6 of the land in question is based on the order passed by the Collector as well as agreement of the quarry lease and therefore it cannot be said that the respondent No. 6 has unauthorizedly entered on the gauchar land.

4. Learned AGP Mr. Ashar submitted that the Collector while deciding to divest land from the gauchar head for the purpose of granting quarry lease considered various reports, and found it proper to pass the impugned order on the basis of the resolution passed by the Gram Panchayat and therefore this Court may not interfere with the impugned orders in exercise of powers under Article 226 of the Constitution of India.

5. The Court having heard learned advocates for the parties, finds that pursuant to the application made by the respondent No. 6 for the purpose of grant of quarry lease, the Gram Panchayat initially passed resolution in its meeting held on 25/07/2008 and gave no objection for grant of one hectare land from Survey No. 115 for quarry lease to the respondent No. 6. It appears that subsequently, the respondent No. 6 requested to grant one more hectare of land from Survey No. 115. Such request was considered by the Gram Panchayat and further resolution was passed in its meeting dated 16/09/2008 and consent was given for grant of one more hectare of land to the respondent No. 6 for mining purpose. Based on such resolution and after considering the opinion of Mamlatdar, Deputy Collector, and the Geologist, the Collector passed order dated 23/09/09 for divesting 2 hectares of land from gauchar head of Survey No. 115 to Government waste land for the purpose of grant of quarry lease in favour of the respondent No. 6.

6. Learned advocate Mr. Nangesh however submitted that while passing the impugned orders, the authorities below have not considered the availability of adequate gauchar land considering the population of the cattle of the village. Mr. Nangesh also submitted that the authorities below have also failed to consider the law laid down by the Division Bench of this Court in the case of Sharda Sahkari Gruh Mandali Limited v. Ahmedabad Municipal Corporation 2006 (2) GLR 1765, as also the decision of the Hon'ble Supreme Court in the case of Jagpal Singh v. State of Punjab (2011) 11 SCC 396.

7. In the case of Sharda Sahkari Gruh Mandali Limited v. Ahmedabad Municipal Corporation (supra), this Court observed in paragraph Nos. 40 & 44 as under:-

40. So far as gauchar land is concerned, if it is found that there is any encroachment on such lands, the concerned authorities shall take appropriate action to see that such gauchar land is made available for grazing cattle. Adequate gauchar land is required to be maintained even as per the provisions of the Panchayat Act and other laws.

44. We are sure that continuous supervision and monitoring will be done by the appropriate authorities in connection with the problems regarding maintenance of roads, monitoring the condition of roads during the pre-monsoon and post-monsoon periods, and also in solving the problem of stray cattle, providing adequate parking facilities at various buildings and party plots. It is also hoped that appropriate action will be taken in connection with removal of encroachments from gauchar lands.

8. In the case of Jagpal Singh v. State of Punjab; the Hon'ble Supreme Court has held and observed in paragraph Nos. 17, 21 and 23 as under:-

17. In many States Government orders have been issued by the State Government permitting allotment of the Gram Sabha land to private persons and commercial enterprises on payment of some money In our opinion all such government orders are illegal and should be ignored.

21. In Uttar Pradesh the U.P Consolidation of Holdings Act, 1954 was widely misused to usurp the Gram Sabha lands either with connivance of the Consolidation Authorities, or by forging orders purported to have been passed by Consolidation Officers in the long past so that they may not be compared with the original revenue record showing the land as Gram Sabha land, as these revenue records had been weeded out. Similar may have been the practice in other States. The time has now come to review all these orders by which the common village land has been grabbed by such fraudulent practices.

23. Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorised occupants of the Gram Sabha/Gram Panchayat/poramboke/shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show-cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularising the illegal possession. Regularisation should only be permitted in exceptional cases e.g where lease has been granted under some government notification to landless labourers or members of the Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land.

9. The Court however finds that in the case on hand, the land of 2 hectares from Survey No. 115 is ordered to be divested from gauchar land for mining purpose and not to regularize any unauthorised construction or encroachment on the gauchar land. The authorities below have observed that the Gram Panchayat passed two different resolutions for giving consent to divest 2 hectares of land from Survey No. 115. Copy of the resolution giving consent for additional one hectare of land is placed by respondent No. 6 with the affidavit-in-reply.

10. In such view of the matter, it cannot be said that there was no consent from the Gram Panchayat of 2 hectares of land for mining purpose. As regards maintaining of adequate gauchar land is concerned, it is required to note that since based on the Geologist's report it was found that minerals are available beneath the part of the gauchar land, if the Collector has divested some part of the gauchar land, whereunder the minerals were found, the same cannot be said to be in any way illegal or for allowing somebody to unauthorizedly occupy the gacuchar land. The respondent No. 6 is permitted to have quarry lease on the basis of the impugned order made by the Collector, which is no way is illegal or unauthorised.

11. In view of above, reliance placed by Mr. Nangesh on the above judgments will be of no help to the case of the petitioner. The Court finds that since the authorities below have exercised their discretion in passing the impugned orders which cannot be said in any way in violation of any law, the Court would not like to interfere with the impugned orders in exercise of the power under Article 226 of the Constitution of India.

12. The petition is therefore, rejected.