Gujarat High Court in Kalipura Gram Panchayat vs. State of Gujarat & Ors. [06.05.2016]

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

Special Civil Application No. 16419 of 2014

Decided On: 06.05.2016

Kalipura Gram Panchayat

Vs.

State of Gujarat and Ors.

Hon'ble Judges/Coram: C.L. Soni, J.

Counsels:

For Appellant/Petitioner/Plaintiff: Vijay H. Patel, Advocate for H.L. Patel, Advocate

For Respondents/Defendant: J.K. Shah, A.G.P.

JUDGMENT

C.L. Soni, J.

1. By the present petition filed under Article 226/227 of the Constitution of India, the petitioner - Kalipura Gram Panchayat has challenged the order dated 30.01.2014 at Annexure-C passed by the Collector and the affirming order dated 09.10.2014 at Annexure-F passed by the Special Secretary, Revenue Department (Appeals) in Revision Application No. 1 of 2014 preferred by the petitioner.

2. It appears that pursuant to the demand made by the Executive Engineer, Gujarat Energy Transmission Corporation Ltd. ("GETCO") for allotment of the land ad-measuring 190052 square meters from the land bearing Block No. 1 87 to 197, 200 to 206 Paiki of village Ahmadpura, Taluka Talod for establishing 400 K.V. Substation, the Collector - respondent No. 2 called for response of the petitioner. The petitioner sent its objections stating that since huge land is demanded by GETCO from its Gauchar land (the land meant for cattle grazing), the gauchar land will be reduced to a large extent and that as per the resolution passed in its meeting, it was not agreeable to give the land without compensation.

3. The Collector, after considering the objections of the petitioner and the population of cattle in the village vis-a-viz availability of gauchar land with the petitioner, arrived at the satisfaction that considering the public purpose behind establishment of 400 KV Substation, the land demanded was required to be vested with the State Government by resuming it from the petitioner and passed order dated 30.1.2014 to resume the land demanded by GETCO from Gauchar Head, to enter in the name of the Government and to allot the land as shown in the map annexed to the proposal of the Mamlatdar, to GETCO on different conditions. Such order of the Collector has come to be confirmed by the Secretary in the revision application preferred by the petitioner.

4. Learned Advocate Mr. Patel appearing for HL Patel Advocates for the petitioner submitted that as against the requirement of the Gauchar Land for cattle of the village, the petitioner has very less Gauchar land from the beginning. Mr. Patel submitted that considering the insufficiency of Gauchar land with the petitioner, the petitioner was assigned the land of block No. 187 to 197, 200 to 206 Paiki of village Ahmadpura from which the Collector has allotted huge land to GETCO which will reduce the Gauchar land of the petitioner to large extent. Mr. Patel submitted that as per the Government Circulars, 40 acres of Gauchar land is required per 100 cattle and presently, there are 1200 cattle in the village, and if out of 1200 cattle, 500 cattle are taken to be dependent on the Gauchar land, the requirement of gauchar land for the village would be around 8 lac square meters and as against such requirement, now the petitioner will be left with only 1,86,163 square meters of gauchar land. Mr. Patel submitted that there is large gauchar land and wasteland available at village Mahadevpura touching the boundary of the land demanded by GETCO and from such land of village Mahadevpura, GETCO could have been given the land needed by it for establishment of 400 KV Substation.

5. Mr. Patel submitted that to meet with the availability of sufficient gauchar land when the allotment from the existing gauchar land of any village is made, such village is always given compensation at the rate of 30% of the value of the gauchar land. However, in the present case, though the Collector has observed in his order for giving of such 30% compensation, no such amount is deposited by the GETCO and the petitioner is just left to the mercy of the mighty company like GETCO and the Government authorities and the cattle in the village will suffer a lot on account of non-availability of sufficient gauchar land.

6. Learned A.G.P. Mr. Shah on the other hand submitted that the Collector having found that the land is required for public purpose and having considered that sufficient gauchar land is available with the petitioner for cattle which depends upon the gauchar land in the village, took decision to allot the land demanded by GETCO for establishing its Substation. Mr. Shah submitted that to serve large public purpose, if the allotment of land is made from the existing gauchar land, private interest has to give way to public purpose especially when in allotment of such land for public purpose, there is no violation of any law.

7. Learned Advocate Mr. Bhairavia appearing for respondent No. 3 submitted that the purpose to seek the allotment of the land vested with the panchayat is to establish 400 KV Substation for giving uninterrupted high voltage power supply for the large areas in and around village Kalipura. Such power supply will boost the industrial development in the areas and considering such public purpose behind establishment of 400 KV Substation by GETCO, the Collector, on being satisfied that the petitioner shall be left with sufficient gauchar land after allotment to GETCO, has exercised his discretion and, therefore, this Court may not interfere with the impugned orders in exercise of the powers under Article 226/227 of the Constitution of India. Mr. Bhairavia submitted that the petitioner has not been using 50% of the gauchar land available with it as it is allowed to be occupied by thorns, neem trees, babool trees etc. and only 50% of the gauchar land is found usable for grazing of cattle. Mr. Bhairavia submitted that in the context of availability of gauchar land with the petitioner, while keeping in view the number of cattle and considering the public purpose for which the land was demanded, the petitioner has no justification to object allotment of the land to GETCO. Mr. Bhairavia submitted that the GETCO has already deposited huge amount of Rs. 4,33,31,856 as recorded in the order of the Collector and will deposit further amount if higher value is assessed by the concerned valuation committee and is also agreeable to deposit 30% of the total price of the land allotted to GETCO for the benefit of the village.

8. The Court, having heard the learned advocates for the parties, finds that demand of the land ad-measuring 190052 square meters by the Executive Engineer of GETCO was for the purpose of establishing 400 KV Substation for distribution of electricity of high voltage. Such establishment of the Substation for transmission and distribution of electricity is undoubtedly for public utility. However, the case of the petitioner is that from the very beginning, it has less and insufficient gauchar land with it as against the number of cattle in the village and considering such insufficiency of the gauchar land, long before the petitioner was assigned the land of block No. 187 to 1997, 200 to 206 Paiki of Ahmadpura village so as to meet with its requirement of gauchar land against the number of cattle in the village. Mr. Patel submitted that if from such assigned lands, now, land ad-measuring 190052 square meters is allotted to GETCO, gauchar of the petitioner will be reduced to a large extent bringing the petitioner again to the same situation which the petitioner faced before assignment of the land of village Ahmadpura to it. While relying on the judgment of the learned Single Judge dated 1.3.2011 in Special Civil Application No. 1300 of 2010, Mr. Patel drew attention of the Court to the Government Resolutions quoted in paragraph 5.1 and 5.3 thereof to point out that the ratio of 40 acres of gauchar land per 100 cattle is fixed for determining sufficiency of gauchar land with the village and the types of cattle for grazing purpose are also mentioned therein. In the affidavit in support of the petition filed on 1st February, 2016, it is stated that 70% of the families of the village economically and financially dependent upon the income of milk and as per the certificate of the dairy run by the cooperative society in the village, about 1200 liter of milk per day is being made available to the dairy.

9. In the context of the above facts, clause (ii) and (iii) of the Government Resolution quoted in para 5.1 of the above referred judgment of the learned Single Judge needs to be considered which read as under:

"(ii) While fixing the area to be assigned for grazing in each village only the following cattle should be taken into account:--

(a) Cows, bulls, bullocks, he-buffaloes, she-buffaloes, donkeys and ponies provided that they are useful for breeding, milching, agricultural operations and other useful work connected with agricultural operations.

(b) Calves as defined in the 'Comments' below Village From XV in the Revenue Accounts Manual.

(iii) All useless cattle, sheep, goats, cattle belonging to professional grazers or professional cattle breeders or commercial dairies and cattle used for business purposes e.g. ponies exclusively used for tongas plying for hire, bullocks exclusively used for carts playing for hire, should not be taken into account for the purpose of assigning lands for free grazing in a village."

10. As per clause (iii), all useless cattle, sheet, goats, cattle belonging to professional grazers or professional cattle breeders or commercial dairies and cattle used for business purposes should not be taken into account for the purpose of assigning lands for free grazing in a village. Therefore, it is not always the total number of cattle in the village need to be considered for the purpose of deciding sufficiency or otherwise of availability of gauchar land in the village. In Special Civil Application No. 1300 of 2010, considering the strength of existing cattle, the Court was of the view that the diverting of the land from Gauchar head for other purpose was not legal. However, in the case on hand, 70% of the families are linked with the business of dairy. If all the cattle in the village were to depend on the gauchar land, the petitioner or the people of the village would not have allowed 50% of gauchar land to remain unfit for grazing purpose. Seeing the matter in above context, if the order of the Collector is examined, the Collector has rightly come to the conclusion that over and above the 1,29,374 square meters of gauchar land available with the petitioner, when 56789 square meters of gauchar land of village Ahmadpura will still be available to the petitioner after making allotment of the land to GETCO for establishing 400 KV Substation, it is sufficient for the cattle of the village. Thus, as observed by the Collector, in all 186163 square meters of the land is available with the petitioner as gauchar land. The Collector has recorded that presently, there are 483 cattle including 201 cows,277 buffaloes, 5 sheep and for them, 186163 square meters of land is sufficient. It is not that the land is being allotted to GETCO free of costs. As observed by the Collector, the GETCO has deposited Rs. 4,33,31,856.00 at Juntry rate of Rs. 228.00 per square meter and such is not the final figure. Final determination of the value is still to be done by the valuation committee. The Collector has also put one of the conditions of paying 30% of the total value of the land as may be determined by the valuation committee by way of compensation by GETCO and this condition is in consonance with the Government Resolution for depositing with the Taluka Panchayat to enable the Gram Panchayat to acquire other land to use as gauchar land. When the land is being allotted by the Collector for public utility on above considerations and when the Secretary has, for good reasons, not interfered with the order of the Collector, this Court would not like to sit in appeal over the wisdom exercised by the Collector as affirmed by the Secretary for allotment of the land from Gauchar land of the village for public utility in exercise of the powers under Article 226/227 of the Constitution of India.

11. Learned Advocate Mr. Patel however relied on the decision of the Hon'ble Supreme Court in the case of Jagpal Singh & Ors. v. State of Punjab & Ors. reported in AIR 2011 SC 1123 so as to point out that the gauchar land should not be allowed to be occupied for commercial purpose and it should be left to the management of the Gram Panchayat for the betterment of the community people as traditionally being used by them and the illegality in the matter of allotment of gauchar land cannot be condoned. Mr. Patel drew attention to para 13 and 22 of the said judgment which read as under:

"13. We find no merit in this appeal. The appellants herein were trespassers who illegally encroached on to the Gram Panchayat land by using muscle power/money power and in collusion with the officials and even with the Gram Panchayat. We are of the opinion that such kind of blatant illegalities must not be condoned. Even if the appellants have built houses on the land in question they must be ordered to remove their constructions, and possession of the land in question must be handed back to the Gram Panchayat. Regularizing such illegalities must not be permitted because it is Gram Sabha land which must be kept for the common use of villagers of the village. The letter dated 26.9.2007 of the Government of Punjab permitting regularization of possession of these unauthorized occupants is not valid. We are of the opinion that such letters are wholly illegal and without jurisdiction. In our opinion such illegalities cannot be regularized. We cannot allow the common interest of the villagers to suffer merely because the unauthorized occupation has subsisted for many years.

22. 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 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."

12. In fact, as observed by Hon'ble the Supreme Court in the said judgment especially in para 22, public utility falls within the exceptions carved out for allotment or regularization of encroachment of gauchar land. Thus, allotment of the land from gauchar land for public utility, and as rightly submitted by the learned AGP Mr. Shah, private interest is always to give way to public purpose, when it seeks to serve the people in large areas, cannot be termed as illegal. In affidavit in reply filed on behalf of respondent No. 3, object and scope of GETCO, purpose of establishment of 400 KV Substation and its plan to invest and spend Rs. 250 crores considering high growth and potentiality of industrial activities in the areas are mentioned in para 2.1, 2.2 and 3.12 as under:

"2.1 Object & Scope of GETCO

• GETCO - A wholly owned subsidiary company of Government of Gujarat is a public utility service engaged in transmission of Electricity. Its vision is to build, operate and maintain an efficient power transmission system and to achieve global standards in transmitting reliable, uninterrupted quality power.

• In its' endeavour to achieve this goal of vision and mission, GETCO plans and executes new substations of different class like 66,/132/220 and 400 KV substations and corresponding transmission lines in different areas o Gujarat every year considering system requirement, existing and future electricity load requirement and overall development pattern of the region, in line and directives of Government of Gujarat's development policy.

• Considering above factors, GETCO has planned to construct 400 KV substation in Sabarkantha district near the borders of Ahmedabad and Gandhinagar district, which is having high potential for industrial, agriculture, commercial and residential development in the form of big townships.

2.2 Need of establishment and construct EHV substation of 400 KV.

• It is important to mention here that there is no EHV substation of 400 KV class in the entire district of in Sabarkantha and newly form district i.e. Aravalli district, Gujarat. Therefore, GETCO has undertaken immediate task to set up and construct 400 KV sub-station to cater the present and future need of above stated Districts of Gujarat State.

• GETCO was in search of such a location to have optimum utlisation of the substation for strengthening of existing net work of Sabarkantha as well as Aravalli districts in techno economical way.

The power Map of North Zone showing existing and proposed substations and allied lines is attached herewith for ready perusal as Annexure R-3.

"Prantij was the best location so far the connectivity to existing net work as well as inter connection with proposed substations under green corridor.

Approximately 20 Acres of land is required to establish 400 KV Substation. If we consider salient criteria mentioned here under:--

Availability of sufficient and technically suitable land Availability of Infrastructure like Road Connectivity, Schooling, water and sanitation facilities etc.

Availability of ground water Feasibility for termination of lines to existing network Load Centre Scope of future expansion

The land selected at Kalipura village is the best suitable land for constructing 400 KV Substation.

3.12 GETCO has planned to invest and spend @ Rs. 250 crore for construction of 400KV substation at village Ahmedpura (Kalipura), Ta. Talod, Dist.-Sabarkantha 400KV substation in Sabarkantha district which is nearby the borders of Ahmedabad and Gandhinagar district, which is having high growth potential for industrial, commercial, residential in the form of big township. Recently in the wake of recent Japan visit of Hon'ble Prime Minister's, it is learnt that a huge Silicon park is planned in the proposed region of Sabarkantha District i.e. based on the present proposed 400 KV at Kalipura, Sabarkantha."

13. In the case of Chaudhary Laxmanbhai Parthibhai & Ors. v. State of Gujarat & Ors., reported in 2012 (3) GLR page 2735, relied on by Mr. Bhairavia, Hon'ble the Division Bench of this Court had occasion to consider the issue as regards resumption of gauchar land by the Government for public purpose and the requirement of giving hearing to the panchayat or taking consent of the panchayat. Hon'ble the Division Bench while considering the Government Resolution of 1954 and other resolutions which were considered by the learned Single Judge in above referred judgment dated 1.3.2011 in Special Civil Application No. 1300 of 2010, has held and observed in paragraph No. 8 to 22 as under:

"8. Having heard learned counsel for the respective parties and having gone through the materials on record, the only question which falls for our consideration in this petition is as to whether respondent No. 2 - Collector erred in law or in any other manner in passing an order of allotment of land in favour of respondent Nos. 3 and 4.

9. Before entering into the merit, we propose to deal with the preliminary contention as raised by Mr. Percy Kavina, learned senior counsel appearing for respondent Nos. 3 and 4, as regards the genuineness of the public interest involved in the present petition and also as regards the bonafides of the petitioners.

10. Ordinarily, court would allow litigation in public interest if it is found:

i. That the impugned action is violative of any of the rights enshrined in Part III of the Constitution of India and relief is sought for its enforcement;

ii. That the action complained of is palpably illegal or mala fide and affects the group of persons who are not in a position to protect their own interest on account of poverty, incapacity or ignorance;

iii. That the person or a group of persons were approaching the Court in public interest for redressal of public injury arising from the breach of public duty or from violation of some provision of the Constitutional law;

iv. That such person or group of persons is not a busy body of meddlesome inter-loper and have not approached with mala fide intention of vindicating their personal vengeance or grievance;

v. That the process of public interest litigation was not being abused by politicians or other busy bodies for political or unrelated objective. Every default on the part of the State or Public Authority being not justiciable in such litigation;

vi. That the litigation initiated in public interest was such that if not remedied or prevented would weaken the faith of the common man in the institution of the judiciary and the democratic set up of the country;

vii. That the State action was being tried to be covered under the carpet and intended to be thrown out on technicalities;

viii. Public interest litigation may be initiated either upon a petition filed or on the basis of a letter or other information received but upon satisfaction that the information laid before the Court was of such a nature which required examination;

ix. That the person approaching the Court has come with clean hands, clean heart and clean objectives;

That before taking any action in public interest the Court must be satisfied that its forum was not being misused by any unscrupulous litigant, politicians, busy body or persons or groups with mala fide objective of either for vindication of their personal grievance or by resorting to black-mailing or considerations extraneous to public interest.

11. We shall first deal with the question as to whether there is at all any conflict between the order passed by the Collector dated 18th January 2011 and the one passed by the Secretary, Panchayat Department dated 29th September 2011. There is no doubt in our mind that the order passed by respondent No. 2 - Collector dated 18th January 2011 has been passed in exercise of delegated powers by the State Government under Section 271 of the Gujarat Panchayats Act, 1993. As Section 271 of the Act empowers the Government to authorize any officer of the Government to exercise any of the powers exercisable by the State Government, except the power to make rules, the power delegated to any officer would still remain the power of the Government and, therefore, the officer who exercises the power under Section 108(4) of the Act is, in fact, not exercising his own statutory power but he is exercising powers of the Government and, therefore, his action taken in pursuance of delegation under Section 271 of the Act would be treated as an action of the Government.

12. We may only say that the powers exercised by the Collector under Section 108(4) of the Act for resumption of land is by virtue of the delegated powers in view of the provisions of Section 271 of the Act. Thus, in substance, it is an order passed by the State Government.

13. So far as the revision application which was heard by the Additional Secretary (Panchayat) is concerned, the issue was altogether different. In our opinion, the issue was very limited to the extent as to whether the Panchayat could have reviewed its earlier resolution and passed a fresh resolution to the effect that they do not agree to the allotment of 'gauchar' land in favour of respondent Nos. 3 and 4. First, it is nobody's case that the consent or the views of the Panchayat in this regard were ever called for by any authority before taking decision for allotment of land in favour of respondent Nos. 3 and 4. It appears that it was a unilateral act on the part of the Panchayat having come to learnt that land is being allotted to respondent Nos. 3 and 4.

14. Be that as it may, the Panchayat could have passed a resolution stating that they do not agree to grant of such land. The question is how far such a decision of the Panchayat would be binding on the Government. So far as this question is concerned, it should not detain us any longer to answer the same.

15. Section 108 of the Panchayat Act, 1993 pertains to vesting of certain land in Panchayat by the Government and reads as follows:

"108.Government may vest certain lands in panchayat.--

(1) For the purpose of this Act, the State Government may subject to such conditions and restrictions as it may think fit to impose vest in a panchayat open sites, waste, vacant, or grazing lands or public roads, streets, bridges, ditches, dikes and fences, wells, river-beds, tanks, streams, lakes, nallas, canals, water-courses, trees or any other property in the village vesting in the Government.

(2) Subject to any conditions and restrictions imposed by the State Government under sub-section (1) and with the previous sanction of the Collector, a panchayat may discontinue or stop up any such public road or street vested in it by the State Government but which is no longer required as public road of street and may lease or sell any such land therefore used for the purposes of such public road or street: Provided that one month before it is decided to stop up or discontinue such public road or street, the Sarpanch shall, by notice signed by him and affixed in the part of the public road or street which is proposed to be discontinued or stopped up, and published in such other manner as is prescribed, inform the residents of the village of the said proposal and consider any objections in writing made thereto. The notice shall indicate the alternative route, if any which it is proposed to provide or which may already be in existence.

(3) Whenever any public road or street or any part thereof has been so discontinued or stopped up, reasonable compensation shall be paid to every person who was entitled to use such road or street or part thereof, otherwise than as a mere member of the public, as a means of access to or from his property and has suffered damage from such discontinuance or stopping up, and the provisions in the Bombay Highway Act, 1955 (Bom.LV of 1955) in relation to the assessment apportionment, and payment of compensation shall, mutatis mutandis, apply thereto as they apply in relation to the closure of a highway under section 52 of that Act.

(4) Where any open site or waste, vacant or grazing land vesting in Government, has been vested by Government in a panchayat whether before or after the commencement of this Act, then it shall be lawful for the State Government to resume at any time such site or land, if it is required by it for any public purpose:

Provided that in case of any improvement of such site or land made by the panchayat or any other person, the panchayat or person, as the case may be, shall be, entitled to compensation equal to the value of such improvement and such value shall be determined in accordance with the provisions of the Land Acquisition Act, 1894 (I of 1894)."

In terms of Sub-section(4) of Section 108 of the Gujarat Panchayat Act, 1993, it is lawful for the State Government to resume any land including the grazing land vested by the Government in Panchayat, if it is required for any public purpose.

16. In Panchayat Varga Shramjivi Samudaik Sahakari Khedut Co-op Society Ltd. and others v. Haribhai Mevabhai and others, reported in AIR 1996 SC 2578, Supreme Court had an occasion to deal with the issue, as to whether before resumption of a land by the State Government under Section 108(4) of the Act was it obligatory to hear the panchayat or seek its consent. [In the case before the Supreme Court, Supreme Court was dealing with Section 96(4) of the Gujarat Panchayats Act, 1961, which is now Section 108(4) of the Gujarat Panchayats Act, 1993].

17. The Supreme Court answered the issue in negative observing as under:

"Economic empowerment of the poor, in particular the Scheduled Castes and Scheduled Tribes, as is enjoined under Article 46, is a constitutional objective as basic human and fundamental right to enable the labourer, Scheduled Castes and Tribes to raise their economic empowerment. When the appellant-Society had requested for assignment of the waste land vested in the Gram Panchayat, the Gram Panchayat undoubtedly passed a unanimous resolution requesting the Collector to resume the land for assignment to the appellant-Society. Since, the Gram Panchayat as a representative body passed the resolution, it would be obvious that the elected members represent the interest of the Gram Panchayat for effecting the constitutional goal. When the Gram Panchayat in turn passed the resolution for the said purpose, there was no obligation to issue notice to the villagers. That apart, the scheme of Section 96 is clear. The Legislature is cognizant of the fact that when public road or street is sought to be discontinued or closed, public is likely to be effected, Sarpanch or Chairman acting on behalf of Gram Panchayat etc. is enjoined by the proviso to sub-section (2) of Section 96 to issue notice to them. It specifically enjoins the Sarpanch or the Chairman, as the case may be, to cause a notice to be issued in the prescribed manner, before passing a resolution so that the affected users would have an opportunity to put in their objections for consideration by the Gram Panchayat. But when the waste land or open site or vacant land or grazing land vested in the State was sought to be resumed from the Gram Panchayat by the Collector for another laudable public purpose, then the silence of issuance of notice is eloquent. Requirement of hearing the villagers is not insisted. The Legislature did not intend issuance of notice to villagers."

18. We may now come to the question of adequacy of 'gauchar' land at village Mahi. It would be profitable to refer to few relevant Government Resolutions. It appears that the said did not cover the merged areas of the State and it did not also clearly indicated as to which animals would fall under 'cattle' for which free grazing areas should be assigned under the Land Revenue Code and the Rules issued thereunder and, therefore, Government issued another Government Resolution and issued the following orders.

"(i) The Collectors in charge of villages merged in the State of Bombay should, after consultation with the Director of Agriculture, the Chief Conservator of Forests and the Director of Animal Husbandry and Veterinary Science, prescribe the standard grazing areas in respect of the merged villages and communicate them to the officers concerned and also to Government for issuing the requisite correction slip to the Bombay Forest Manual.

(ii) While fixing the area to be assigned for grazing in each village only the following cattle should be taken into account:--

(a) Cows, bulls, bullocks, he-buffaloes, she-buffaloes, donkeys and ponies provided that they are useful for breeding, milking, agricultural operations and other useful work connected with agricultural operations.

(b) Calves as defined in the 'Comments' below Village Form XV in the Revenue Accounts Manual.

(iii) All useless cattle, sheep, goats, cattle belonging to professional grazers or professional cattle breeders or commercial dairies and cattle used for business purposes e.g. ponies exclusively used for tongas plying for hire, bullocks exclusively used for carts playing for hire, should not be taken into account for the purpose of assigning lands for free grazing in a village."

It appears that thereafter following points were raised for consideration of Government:--

"(a) Whether reservation of grazing areas is necessary and if so, what area should be reserved per hundred head of cattle: and

(b) Whether Government land, which is under cultivation, should be withdrawn from cultivation for being assigned for grazing."

It appears that thereafter after considering the report received from the officers concerned, Government issued the Government Resolution No. GR8-1053/5627 dated 10.05.1954 and Government issued the following directions:

"(i) the old practice of assigning lands for grazing under Section 38, Land Revenue Code and rule 73, Land Revenue Rules and the orders issued from time to time, should be maintained.

(ii) The standard acreage of grazing area fixed under paragraph 1 of Government Resolution No. 7633/49, dated the 11th December 1952, should be fixed at 40 acres per 100 head of cattle in the Northern Division and 50 acres per 100 head of cattle in the Central Division and the Southern Division subject to the consideration mentioned in (v) below.

(iii) The Collectors of the districts concerned should revise the assignment of grazing area on this basis and dispose of the surplus area (i.e. area remaining after assigning land for public purpose including grazing), for cultivation in accordance with the standing orders of Government.

(iv) In some villages land has been in fact used for grazing without formal assignment. The Collectors concerned should now make a formal assignment and see to it that it is noted in the village records.

(v) If forest areas are available for grazing in or adjoining a village, that factor should be taken into account at the time of determining the area required to be assigned for grazing in that village and the limits prescribed in (ii) above halved where necessary.

(vi) In villages where the total area assigned for grazing is inadequate, attempt should be made to make up the deficit by assigning uncultivable waste land for this purpose."

Thereafter, considering the aforesaid orders, Government issued Circular dated 30th December 1988 reiterating that as per Government standards for 100 cattle, 48-acres (16-hectares) of 'gauchar' land is required to be maintained so that village cattle can be properly looked after. However, the Government is empowered to resume even the 'gauchar' land for any public purpose. The circular further provided that wherever availability of 'gauchar' land is less than the prescribed standard, in such cases, 'gauchar' land should not be utilized for any other purpose and that in exceptional cases only when such land is required for public purpose, procedure for resumption of land should be undertaken. Even in such case, if there is opposition from the local self-government bodies, as far as possible, procedure for resumption of such land should be avoided unless opposition is found to be baseless.

19. This circular is significant for two purposes. First, it refers to the ratio of village cattle to the 'gauchar' land to be maintained as far as possible. Secondly, though while recognizing the Government power to resume 'gauchar' land for any public purpose, it also refers to consultation with the village panchayat while resuming the 'gauchar' land in case where minimum ratio is not maintained. We may only say that Government Circulars or Resolutions provide guidelines for the purpose of administration. Government Circulars or Resolutions do not have any statutory force, though in the resolution consultation has been provided for but the Act does not contemplate such consultation before resumption of land for any public purpose. So far as this issue is concerned, we have discussed the judgment of the Supreme Court quoted above in the case of Pachhat Varga Shramjivi Samudaik Sahakari Khedut Co-op Society Ltd. (supra).

20. Under such circumstances, if the State Government decided to allot some portion of grazing land vested with Mahi Gram Panchayat to rehabilitate respondent Nos. 3 and 4 as they lost their land in the Mukteshwar Reservoir Project, then it could not be said that the decision of the State Government is 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 of India or such policy offending other constitutional provisions or comes into conflict with any statutory provision. The Court could not and should not out step its limit and tinker with the Policy decision of the authorities of the state.

21. We shall now look into the judgment relied upon by Mr. Majmudar in support of his contentions. Mr. Majmudar has relied upon decision of the Supreme Court reported in the case of State of Jharkhand and others v. Pakur Jagran Manch and Others [(2011) 2 SCC 591]. Mr. Majmudar has relied upon the observations made by the Court in paragraphs 23, 24 and 25, which read as under:

"23. We should however note that such de-reservation of any Government land reserved as gochar, should only be in exceptional circumstances and for valid reasons, having regard to the importance of gochar in every village. Any attempt by either the villagers or others to encroach upon or illegally convert the gochar to house plots or other non-grazing use should be resisted and firmly dealt with. Any requirement of land for any public purpose should be met from available waste or unutilized land in the village and not gochar.

24. Whenever it becomes inevitable or necessary to de-reserve any gochar for any public purpose (which as stated above should be as a last resort), the following procedure contemplated in Regulations 24 and 25 and Section 38(2) should be strictly followed:

(a) The jurisdictional Deputy Commissioner shall prepare a note/report giving the reasons why the gochar had been identified for any non-grazing public purpose and record the non-availability of other suitable land for such public purpose. The Deputy Commissioner shall send the said proposal for de-reservation to the State Government for its previous sanction.

(b) The State Government should consider the request for sanction keeping in view the object of gochar and the need for maintaining a minimum of five percent of village area as gochar, and call for suggestions/objections from the villagers before granting sanction.

(c) If the State Government grants the sanction, the Deputy Commissioner should proceed to make an order de-reserving, the gochar by making appropriate entries in the record-of-rights and reclassifying the same for the purpose for which it was de-reserved.

(d) Whenever the gochar in a village is de-reserved and diverted to non-grazing use, simultaneously or at least immediately thereafter the State should make available alternative land as gochar, in a manner and to an extent that the gochar continues to be not less than 5% of the total extent of the village as provided under Section 38(2) of the Tenancy Act.

25. When the gochar is not Government land, but is village common land vesting in the villagers and not the Government, the consent of village headman and the Jamabandi Raiyats/villagers in whom the land vests shall have to be obtained, before de-reservation and diversion of use of gochar."

22. What could be deduced from the observations made by the Supreme Court is that de-reservation of any Government land reserved as 'gauchar' must be in exceptional circumstances and for good reasons. Any requirement of land for any public purpose should be met from available waste or unutilized land in the village and not 'gauchar'. Apart from this, it appears that the Supreme Court was dealing with a regulation framed by the State of Jharkhand. In paragraph 25, the Supreme Court has observed that when 'gauchar' is not Government land but is village common land vesting in the villagers and not the Government, the consent of village panchayat shall be obtained. This is suggestive of the fact that it is only in cases where the land in question is a village common land vesting in the villagers that the consent of the village panchayat be obtained, but if it is 'gauchar' land of the Government, then consent need not be obtained of the village panchayat. In the present case, as discussed earlier, Section 108(4) of the Panchayats Act makes the position very clear that no prior consent or permission is required of the village panchayat before resuming the 'gauchar' land or before utilizing any portion of 'gauchar' land for any public purpose. Under such circumstances, this judgment would not help Mr. Majmudar in any manner as it could not be said that the Supreme Court has laid down as an absolute proposition of law that under any circumstances Government cannot part with 'gauchar' land even if it is to be used for any other genuine and bonafide public purpose."

14. It is pointed out that the Hon'ble Supreme Court has not interfered with the above judgment which was challenged in Special Leave to Appeal (Civil) No. 26402/2012. Learned A.G.P. Mr. Shah has relied on the judgment dated 22.6.2011 rendered by the Hon'ble Division Bench of this Court in Special Civil Application No. 7252 of 2008 and allied matters so as to point out that in similar facts situation, the Hon'ble Division Bench has not interfered with the action of the Collector and the State Government of resuming Gauchar land for the purpose of allotment for industrial purpose. In the said case, order made by the Collector and confirmed by the State Government for resuming gauchar land for industrial purpose was challenged on the ground that the gauchar land in the village was not adequate looking to the cattle population considering the ratio fixed by the State Government to be maintained for such purpose. Considering the contentions raised in the context of the resolutions of the State Government, and sec. 108 (4) of the Gujarat Panchayats Act, the Hon'ble Division Bench has observed in para 22.1 to 24 as under:

"22.1 In Government Resolution dated 20.5.1954, it was provided that standard average of grazing area should be fixed at 40 acres per 100 cattle. We may also notice that under Government Resolution dated 27.1.1999, Government provided that whenever Gauchar land is being resumed for industrial purpose, on the basic market price of land, 30% thereof should be collected by way of premium and such amount shall be made available to the Gram Panchayat for improvement of Gauchar land. Such amount shall be transferred to Taluka Panchayat from where it can be utilized by Gram Panchayat for the purchase of land for Gauchar and the ownership thereof will be of the Gram Panchayat. In the said resolution it is further provided that in case where Gauchar land is being resumed, land to the same extent out of Government wasteland, if possible should be allotted to Village Panchayat. In such case, premium collected from the industry would be retained by the Government.

22.2 From the resolution dated 22.11.2004, it can be seen that though previously resolution dated 27.1.1999 was placed in abeyance, such suspension of resolution was withdrawn.

22.3 It can thus be seen that Collector, Kutch after following proper procedure and taking into account the cattle population in village and the available Gauchar land found that there was excess Gauchar land as per ratio laid down by the Government Resolutions.

22.4 Though total cattle population may have been higher as is being pointed out by the petitioners from the statement issued by Taluka Development Officers, not all the cattle in the village are to be counted for the purpose of maintaining minimum Gauchar land. From the affidavits filed by the State agencies and resolutions produced along with such affidavits, it emerges that useless cattle, cattle belonging to professional grazers or professional cattle breeders or commercial diaries and cattle used for business purposes, should not be taken into account for the purpose of maintaining minimum area of Gauchar land. Accordingly, at the relevant time cattle population in village i.e. cows and buffaloes was put at 3543. Counting 100 acres per 40 cattle. Remaining area of 1840.26 acres of Gauchar land was found adequate. We do not find any infirmity in such calculation. The petitioners have not been able to demonstrate that in view of Government Resolution dated 14.11.1950, the calculation of cattle population by the State Authority was incorrect or that considering such figures, remaining Gauchar land of 1840.26 acres would not meet the ratio of 100 acres of land per 40 cattle's.

23. We may however, recall that as per resolution dated 27.1.1999, while resuming Gauchar land for industrial purpose, it is envisaged that 30% of the market rate will be collected by way of premium. Government should if possible allot similar area of land out of Government waste land to the Village Panchayat for Gauchar and if such Government wasteland is not available, the premium collected should be placed at the disposal of the Village Panchayat through Taluka Panchayat for acquisition of land for Gauchar.

24. We are sure State authorities would be cognizant of the provisions contained in said Government Resolution dated 27.1.1999 and would take appropriate steps in terms of such provisions. Present petition however, is not aimed at directing the Government to allot Gauchar land to the Village Panchayat from out of its wasteland available. No direction in this regard therefore, can be granted. However, we recommend that State Government shall examine whether out of wasteland available with the Government, area to the extent of Gauchar land resumed from the Panchayat, could be allotted to Zarpara Gram Panchayat. However, insofar as challenge of the petitioners to the resumption of Gauchar land to the Panchayat and allotment thereof to respondent No. 3 is concerned, same fails."

15. In light of the above and for the reasons stated above, the court finds that no interference is required in the impugned orders in exercise of the powers under Article 226/227 of the Constitution of India. However, in the context of the concern expressed by the learned Advocate Mr. Patel that GETCO has not deposited 30% of the amount which is presently determined and deposited by GETCO, when put to learned Advocate Mr. Bhairavia, Mr. Bhairavia, under the instruction of the officers present in the Court from GETCO, stated that the appropriate steps shall be taken to deposit 30% of such amount within reasonable time. In view of such statement, it could be said that the concern expressed by the learned Advocate Mr. Patel is taken care of. The petition is, therefore, rejected. Notice is discharged