ORAL JUDGMENT
1. This petition under Article 226 of the Constitution of India is filed for the following reliefs :
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"(A) Your Lordships may be pleased to admit and allow this petition.
(B) Your Lordships may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction, by quashing and setting aside the impugned order passed by the Chief Secretary, Revenue Department (Appeals), dated 20.5.2005, in Revision Application No.MVV/JMN/LND/37 of 1999, at Annexure A to the petition, and the impugned order passed by the Collector, Junagadh, respondent no.2, dated 12.12.1998, at Annexure B to the petition.
(C) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to stay the implementation, execution and operation of the impugned order passed by the Chief Secretary, Revenue Department (Appeals), dated 20.5.2005, in Revision Application No.MVV/JMN/LND/37 of 1999, at Annexure A to the petition, and the impugned order passed by the Collector, Junagadh, respondent no.2, dated 12.12.1998, at Annexure B to the petition.
(D) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to direct the respondents, their officers, agents and servants, not to dispossess and/or obstruct the petitioner from carrying on its activities on the land in question, being land bearing Survey No.281 of Village Khadia, admeasuring 2 hectors, Taluka and District Junagadh.
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(E) To pass such other and further orders as may be necessary in the interest of justice."
2. At the outset, the court has referred to the orders passed in detail by this Court on 28thJuly 2006 and thereafter on 2nd November 2006, wherein this Court has already set up the modes in connection with the subject matter of this petition.
3. As part of the subsequent development, pursuant to the aforesaid orders, an additional affidavit-in-reply is filed by the Collector, Junagadh, wherein it is indicated that the Revision Application came to be rejected by the Principal Secretary (Dispute) vide No.MviVi/JMN/JNDh/ 3799 dated 7.5.2005. Against that, Special Civil Application No.9130 of 2006 came to be filed before this Court, and as per the Oral Order dated 2.11.2006, the following proceedings were carried out :
(1) According to the oral order of the Hon'ble Gujarat High Court dated 2.11.2006, the possession of the land in question has been taken over by the Deputy Collector, Junagadh, on 30.11.2006, as per the details of the Panchrojkam, in presence of the Panchas.
(2) As per the oral order of the Hon'ble Court for the supervision and maintenance of the Board for Prevention of Cruelty to Animals, a representative has been appointed by the office order dated 27.11.2006 of the Assistant Charity as was informed by the Deputy Collector, Junagadh, and the Assistant Charity Commissioner, for constituting a
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Management Committee, and vide order dated 7.12.2006, as the representative of this office, the Circle Officer-1, Mamlatdar Office, Junagadh and as the representative of the Society for Prevention of Cruelty to Animals, Shri Ratigiri Gulabgiri Aparnathi, residing at Khadiya, has been appointed.
(3) On making a proposal before the Revenue Department of the State vide letter No.Land/3/C/321/ 2007 dated 2.3.2007 demanding for regularization of the encroachment in question, the same came to be rejected on the following grounds vide letter No.SCA/162006/COURT- 78/L dated 26.4.2007 of the Revenue Department of the State :
(A) For regularizing the encroachments on the Government lands, on considering the relevant provisions in accordance with the guidelines laid down under the Resolution No.DBN/1072/28765/L dated 8.1.1980 and the amended Resolution No.DBN/1072/27865/L dated 15.11.1989 of the Revenue Department, the encroachments on Government lands cannot be regularized on revenue remission or lease. As per the provisions of Para-3 of the Resolution dated 15.11.1989, if the registered trust has encroached upon a Government land for the purposes mentioned in Rules-32 and 32(a) of the Land Revenue Rules, the same can be regularized after considering the economic condition of the
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encroaching trust, the purpose and attitude of the body who made the encroachment, by fixing a lump- sum fee between two and a half times the market price. In this case, the encroachment by the trust does not fall in any of the purposes mentioned in Rules 32 and 32(a) of the Revenue Rules. therefore, the benefit of the aforesaid provisions cannot be given to the institute. Thus, considering the provisions of the relevant rules, the demand for regularizing the encroachment in question by revenue remission or by lease for 99 years needs to be rejected.
(B) Removing of encroachment is the basic policy and that if there is any encroachment on a pasture land when there is shortage of pasture land the same cannot be regularized. In this case, as mentioned above, there is shortage of pasture land in proportion of the livestock. Therefore, the encroachment in question cannot be regularized.
(C) A Division Bench of Hon'ble High Court delivered a judgment dated 28.6.2006 in Special Civil Application No.1982/2004 in the case of Sharda Cooperative Society Limited, wherein in Paras- 40,43,44, it was held that the pasture land should be maintained only for pasture purposes and encroachment on such pasture land should be removed to prevent harassment to the stray cattle. Moreover, in the recommendations made by the State
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Committee constituted by the order of the Hon'ble High Court which were sent by the Urban Development Department to the Revenue Department, there is also a recommendation by the Committee (Recommendation no.18) recommending that all the pasture lands situated in the State should be kept open for the said purpose and the encroachments on it be removed. Therefore also, considering the above orders of the Hon'ble Court, the encroachments in question being on the pasture land cannot be regularized.
(D) Moreover, a Division Bench of the Hon'ble High Court passed an order on 25.3.2005 in another case of Urban Development Department (L.P.A. No.449 of 2005 in Special Civil Application No.603 of 2005 - Mr. Popatlal P. Joshi) that any encroachment made on Government land shall not be regularized. The stay still operates.
(4) The reasons for not regularizing the encroached land :
The intention of the institute which made the encroachment is multifarious. If the institute would not have made encroachment and have legally demanded for the Government waste land, then the land would have been allotted under the provisions of the consolidated Resolution No.JMN/392003/454/A
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dated 6.6.2003 of the Revenue Department, State Government, without auction, at the prevalent market price on condition of new, indivisible and restricted tenure.
Thus, looking to the aforesaid reasons, the encroachment in question cannot be regularized by revenue remission or on lease for 99 years. Moreover, the land in question cannot be allotted as grant of land. In such circumstances, the demand of Shree Pashu Pakshi Prani Kalyan Mandal, Khadiya, was rejected vide the order No.Land/3/C/953/2007 of this office dated 25.5.2007. Further, it is to state that the demanded land falls under the Gauchar head. As per the judgement of the Hon'ble Supreme Court, the Gauchar land cannot be allotted for any other purpose. Moreover, as per the provisions of the Gauchar Management policy published under the resolution of the Revenue Department of the State Government dated 1.4.2015, the encroachment on the Gauchar land are not to be regularized at any level under any circumstances. It is requested to bring the same to the notice of the Hon'ble Court.
4. Learned senior advocate appearing for the petitioner has, however, raised anxiety with regard to the status of the land in question, more particularly, by submitting that the Government land surrounding the subject land Survey No.281 admeasuring 5-A-19-G of village Khadia, Taluka and District Junagadh, is full
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of encroachers and if any laxity is shown by the administration, the subject land, which is now a green patch, may also lead to the vice of encroachment.
5. The aforesaid grievance, though cannot be overlooked, but at the same time, the court is satisfied from the report given by the Collector himself with regard to the arrangement made qua the subject land where the participation of the petitioner is also envisaged.
6. In that view of the matter, no further orders are required to be passed in this petition, except seeing/observing the arrangement made by the State administration in connection with the subject land.
(A.Y. KOGJE, J.)
/MOINUDDIN
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