Saturday, October 31, 2015

Biliyaada Gram Panchayat & 2 Vs The Petitioners on 21 July, 2015 C/WPPIL/140/2015 ORDER

Gujarat High Court


WRIT PETITION (PIL) NO. 140 of 2015
B I L I Y A A D A G R A M P A N C H A Y A T & 2 . . . . A p p l i c a n t ( s ) V e r s u s
S T A T E O F G U J A R A T & 2 . . . . O p p o n e n t ( s )
========================================================== Appearance:
M R S H A K T I S J A D E J A , A D V O C A T E f o r t h e A p p l i c a n t ( s ) N o . 1 −
M R S P M A J M U D A R , A D V O C A T E f o r t h e A p p l i c a n t ( s ) N o . 1 − 3
M R R A K E S H P A T E L , A G P f o r t h e O p p o n e n t ( s ) N o . 1
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = 

C O R A M : H O N O U R A B L E M R . J U S T I C E J A Y A N T P A T E L a n d

1. The petitioners, by this petition, are invoking the jurisdiction of this Court as public interest litigation for seeking appropriate writ to quash and set aside the order (Annexure−M) passed in May 2015 by the District Collector and it is prayed by the petitioners that respondent authority be directed to reassign the land as Gauchar land.

2. We have heard Mr. Majmudar, learned counsel appearing for the petitioners.
3 . The only contention raised by the learned counsel for the petitioners is that the land has not been allotted by public auction and it was also submitted that in village area, there is C/WPPIL/140/2015 ORDER requirement for Gauchar land (land reserved for grazing of stray cattle) and therefore, the land should have been marked for Gauchar land instead of allotting the same to the respondent no.3 trust for educational purpose.

4. It is an admitted position that on the date when the land was allotted by the impugned decision of the Collector, the land was not reserved as Gauchar land, but was as waste land of the Government. It is true that initially, the land was reserved as Gauchar land, but subsequently, the land was resumed by the Government  and it was allotted for industrial purpose of stone crushing to the private person. As the said person committed breach of the condition of allotment, the land was again resumed back and it remained as waste land.

5 . Mr. Majundar, learned counsel appearing for the petitioners contended that as the land was used as Gauchar land and never used for stone crushing activity, it could be termed as Gauchar land.

6. We are afrad of such contention can be accepted after resumption of the land by the Government. The land remained as waste land of the Government and thereafter, it was never marked as Gauchar land. Further, even one of the prayer of the petitioners is that the land be marked as Gauchar land. That itself would show that the land was not marked as Gauchar land. The record shows C/WPPIL/140/2015 ORDER that the land was a waste land of the Government.

7. Section 62 of the Bombay Land Revenue Code reads as under:

" 6 2 . Unoccupied land and may be granted on conditions:-  It shall be lawful for the Collector subject to such rules as may from time to time be made by the State Government in this behalf, to require the payment of a price for unaliented land or tos ell the same by auction and to annex such conditions to the grant as he may deem fit, before permission to occupy is given under section 60 . The price (if any) paid for such land shall the price of the Government right to all trees not specially reserved under the provisions of section 40 and shall be recoverable as an arrear of land revenue.”

8. The aforesaid shows that there is inbuilt power with the Collector or the State Government, as the case may be, to allot unalienated land or to sell the same by auction. In the present case, there is no sale of the land, but the allotment of the land is for educational purpose in a remote area of village for establishing school and the incidental activities of the school. Further, the price as decided by the valuation committee has been recovered as per the policy of the Government, i.e., 50% of the market value. The amount of about more than Rs.80 Lakhs has already been paid by the educational trust and thereafter, the land has been allotted. If the section is considered as it is, it is not sine qua non that in allotment of any unoccupied land, C/WPPIL/140/2015 ORDER the Government cannot allot unless public auction is held. In our view such would essentially depend upon the policy of the Government. If the policy provides that for educational purpose the land can be allotted without auction, such policy per se cannot be said to be arbitrary or violative of Article 14. No material whatsoever has come on record that any similarly situated educational trust was desirous to establish the school in the said remote area of the village and it has been deprived of or had at any time applied to the Government for allotment of the land.

9. At this stage, we may refer to the decision of this Court in the case of Patel Parshottamdas Chaturbhai and Ors. Vs. Harijan Shakarbhai Lakhabhai & Ors. Reported at 1978 GLR 341, wherein the land was allotted by the Government without holding auction to the backward class cultivators and the contention was raised that it should not have been allotted without holding public auction. The learned Single Judge of this Court (Coram : M.P. Thakkar, J.), after considering section 62 of the Code, observed at paragraph 5 as under:      
" 5 . Now , there is nothing in Section 62 of the Code or any other provisions of the Code which requires that the grant of Govt, waste land can be made only as provided by Section 62. Section 62 is only one of the modes in which a grant can be made. It does not exhaust the powers of Government to make C/WPPIL/140/2015 ORDER grant otherwise than Section 62 merely provides that the Collector may require payment of price for unaliented land or to sell the same by auction and to annex such conditions to the grant as he may deem fit. It is, therefore, not obligatory that the land should be sold by auction. It can be granted provided it does not infringe any provision of law and does not violate any status or provisions.

Therefore even if it were to be assumed for the sake of argument that Section 62 is the only provision under which a grant can be made, the grant in favour of respondent no. 1 cannot be invalidated merely because instead of selling it by auction, it has been granted to respondent No. 1 in pursuance of the policy decision contained in the Government Resolution dated March 1,1960."

10. However, Mr. Majmudar, learned counsel appearing for the petitioners made an attempt to rely upon the decision of the Apex Court in the case of Akhil Bhartiya Upbhokta Congress v. State of Madhya Pradesh reported at AIR 2011 SC 1834 and contended that as held by the Apex Court, in the said decision, even for specified purposes as per the policy of the Government, the normal mode of holding auction should be followed. He submitted that therefore, the action for allotment of the land would not meet with the test of Article 14 of Constitution.

11.We may record that in the decision of the Apex Court in the case of Akhil Bhartiya Upbhokta Congress (supra) , the facts were so glaring that the land was for memorial of a particular person C/WPPIL/140/2015 ORDER and further the apex Court had also recorded that everything was done for political purpose. Such is not the fact situation in the present case nor there is any allegation in the petition. At paragraph 33, in the very decision, the Apex Court did observed as under:

"33.This, however, does not mean that the State can never allot land to the institutions/organisations engaged in educational, cultural, social or philanthropic activities or are rendering service to the Society except by way of auction.."
12. In absence of any malafide alleged or any allegation of extraneous consideration, if the land is allotted by the Government to an educational institution, that too at the
market price, such decision cannot be said to be arbitrary.

13.The village panchayat is the main body who is one of the petitioners and it is true that some residents of the village are joined. The essential purpose is to make the land available for the cattle of the residents and not for any class of the person who cannot approach before the Court for ventilating the grievance. It is hardly required to be stated that the engagement in the business of animal husbandry cannot be co− linked with the land to be used for grazing purposes of the stray cattle who would not be looked further by anybody. In any case, the land C/WPPIL/140/2015 ORDER is not allotted for any private purpose or with any extraneous consideration, more particularly, when no allegation is made nor any material is produced for such purpose. If the land simplicitor is allotted for educational purpose to a charitable trust who is to render the educational activity without any discrimination of caste or religion that too in a remote area of the village, such action cannot be said as illegal just on a mere ground that a public auction was not held.

14. Under the circumstances, we do not find that any interference is called for either for the individual interest of the gram panchayat much less any public interest as sought to be canvassed.

15. Under the circumstances, the petition is dismissed.

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