ORAL ORDER
(PER : HONOURABLE MR.JUSTICE R.M.CHHAYA)
1. Heard Ms. K.M. Shah, learned advocate for the appellant, Mr. Shirish H. Gohil, learned Assistant Government Pleader for respondents no.1 to 4 and Ms. Sejal K. Mandavia, learned advocate for respondent no.5.
2. Being aggrieved by and feeling dissatisfied with the judgment and order dated 29.3.2016 passed by the learned Single Judge (Coram: Mr. C.L. Soni, J.) in Special Civil Application no. 4437 of 2016, the appellant has preferred
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this appeal under Clause 15 of the Letters Patent Act.
3. Having heard the learned advocates appearing for the respective parties, at the outset, it deserves to be noted that what was challenged in the writ petition were the orders dated 11.3.2011 passed by the District Collector, Surat and confirmed by the Secretary, Revenue Department (Appeals) in Revision Application no. MVV/JMN/ST/10/2011 dated 24.2.2016.
4. Suffice it to note that it is the case of the appellant that the predecessor of the appellant was holding agricultural land admeasuring 18 acres and 23 gunthas and 13 acres and 28 guntahs bearing old blocks no.235 and 263, situated at Bhat Gam, Taluka Olpad, District Surat and were cultivating the said land. The same came to be confiscated on 13.5.1918. Record indicates that an entry also came to be mutated and further by way of an entry no.739 dated 26.6.1951, the lands in question were allocated for Gauchar purpose. Record indicates that the same was granted on lease to Gujarat Rajya Gram Vikas Nigam for the purpose of Gauchar. However, by an order dated 21.11.2005, the same was again taken back by the Government. The appellant filed an application dated 14.12.2009 to allot him
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blocks no.348 and 372 and respondent no.4 also passed a Resolution stating that it had no objection. The said application was turned down by the authority as there is no policy to regrant and the said orders have been confirmed by the Collector as well as the revenue authorities, against which, the writ petition was filed.
5. The learned Single Judge has observed thus:-
"3. The Court, having heard learned advocate Ms. Shah for the petitioner, finds that the land of above said two survey numbers was vested with the State Government in the year 1918. The Government then vest it with the Gram Panchayat under the Gauchar head for grazing of cattle. It appears that some portion of the land was then earmarked for crematorium, however remaining land has continued with the Panchayat under the Gauchar head. Though, the Collector has not discussed in detail as regards refusal to re-grant of the land to the petitioner, however, the Secretary has observed in his order that except the portion of the land earmarked for crematorium, the land has continued to be the Gauchar land. It is further observed that as per the decision of the Hon'ble Supreme Court, there is prohibition in making allotment from the Gauchar land for the agricultural purpose.
4. In the case of Jagpal Singh & Ors. Versus State of Punjab & Ors.
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reported in (2011)11 SCC 396, the Hon'ble Supreme Court has held and observed in paragraph Nos. 17 to 23, which read as under:-
"17. In many states Government orders have been issued by the State Government permitting allotment of 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.
18. The present is a case of land recorded as a village pond. This Court in Hinch Lal Tiwari vs. Kamala Devi, (followed by the Madras High Court in L. Krishnan vs. State of Tamil Nadu, ) held that land recorded as a pond must not be allowed to be allotted to anybody for construction of a house or any allied purpose. The Court ordered the respondents to vacate the land they had illegally occupied, after taking away the material of the house. We pass a similar order in this case.
19. In this connection we wish to say that our ancestors were not fools. They knew that in certain years there may be droughts or water shortages for some other reason, and water was also required for cattle to drink and bathe in etc. Hence they built a pond attached to every village, a tank attached to every temple, etc. These were their traditional rain water harvesting methods, which served them for thousands of
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years.
20. Over the last few decades, however, most of these ponds in our country have been filled with earth and built upon by greedy people, thus destroying their original character. This has contributed to the water shortages in the country. Also, many ponds are auctioned off at throw away prices to businessmen for fisheries in collusion with authorities/Gram Panchayat officials, and even this money collected from these so called auctions is not used for the common benefit of the villagers but misappropriated by certain individuals. The time has come when these malpractices must stop.
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.
22. For the reasons given above there is no merit in this appeal
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and it is dismissed.
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/ unauthorized 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 regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled
Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land".
5. As held in above judgment, allotment or re-grant from Gauchar land is not permitted except for the
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purposes categorized in the judgment. Undisputably, the case of the petitioner does not fall within the exceptions carved out in the said judgment."
6. Having heard the learned advocates appearing for the respective parties, we find that there is no infirmity or error in the order impugned and this Court, in exercise of its jurisdiction, cannot substitute the policy of the Government and direct the Government to allot the land if it is a Gauchar land. Still however and considering the facts of this case, it is provided that it would be open for the appellant to approach the competent authority of the State Government for allotment of this land if it falls within the policy or any other land as per the prevailing policy of the Government. It is, however, clarified that this Court has not expressed any opinion on merits of the matter.
7. Accordingly, the appeal is disposed of. As the appeal is disposed of, Civil Application does not survive and is disposed of.
(R.M.CHHAYA, J)
(V. B. MAYANI, J)
mrp
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