Gujarat HC: Less graves in a kabrastan is no ground to vest the land in Govt. [02.02.2022]

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/Special Civil Application No. 4946 of 2009

Decided On: 02.02.2022

Islahul Sunni Muslim Khidmat Trust

Vs.

Collector

Hon'ble Judges/Coram: Dr. A.P. Thaker, J.

Counsels:
For Appellant/Petitioner/Plaintiff: M.T.M. Hakim
For Respondents/Defendant: Nikunj Kanara, AGP

JUDGMENT

Dr. A.P. Thaker, J.

1. By fling this petition, the petitioner-Trust has prayed to quash and set aside order passed by Collector on 16.9.2006, which is at Annexure-F.

2. Brief facts of the case are that by Revenue Entry No. 246 posted in August 1947, the land bearing Survey No. 1 of Village Champaner admeasuring 2 acres 25.5 Gunthas was allotted for the graveyard (Kabrastan) in the village Form No. 6 after following procedure prescribed under the Bombay Land Revenue Code. It is further the case that entry No. 246 was posted, which also reflects the order dated 3" March, 1947 passed by Collector for the allotment of such land to use the same for the purpose of Kabarstan. On 31st October, 1950 entry No. 283 came to be recorded and said survey No. 1 was bifurcated into land survey numbers namely 1/1/A and 1/1/B. 1/1/A was admeasuring acres 4096.18 Gunthas while survey No. 1/1/B which was allotted to the Kabrastan was admeasuring 2 acres and 27 Guthas. Accordingly, in the Form No. 7/12 also said land is shown as Kabrastan.

2.1. The petitioner trust was registered in the year 1996. After forming of the petitioner-Trust and on making an application to the revenue authorities, by entry No. 689 dated 22.7.1997 the name of the trust was entered into village Form No. 6. The name of the trust was shown against the property bearing survey No. 1/1/B. Since 1997, the petitioner trust is taking care of all affairs of the property situated in survey No. 1/1/B. Since 1997 the petitioner trust has seen so many dead bodies being buried in the land bearing survey No. 1/1/B (Kabrastan). In 2004-2005 and very recently in August, 2008 dead bodies of Muslims staying in and around Champaner are brought to Champaner and have been buried in the Kabrastan. Some of the instances of burial can be seen from the certificates issued by Panchayat showing the burial. The petitioner trust is having possession of the land in question. Despite the above undisputed facts, the respondent passed an order on 16.9.2006 and snatched away the Kabrastan land. It is pertinent to note that entry No. 783 dated 142.2007 was also posted in the revenue record.

3. Heard Mr. Hakim, learned advocate for the petitioner and Mr. Nikunj Kanara, learned AGP for the respondent-State at length.

4. Mr. Hakim, learned advocate for the petitioner has submitted that the respondent authority, while passing the impugned order has exceeded the jurisdiction vested in them and thereby committed an illegality and/or irregularity and if the impugned order is allowed to stand, then the same will cause gross miscarriage of justice and, therefore, the order impugned in the present petition is liable to be quashed and set aside. He has further submitted that the order impugned is misuse of power done by Collector by ignoring normal and regular procedure prescribed by law and the Collector has not even bothered to follow the constitutional mandate. He has submitted that the impugned order suffers from a clear breach of principles of natural justice and equity. The petitioner submits that the name of the trust was recorded in the revenue record in the year 1996. In this regard, he has relied upon annexure-D to the petition. He has also produced village form No. 7-12 showing entries that the land in question is "kabrastan". He further submitted that inspite of this fact the respondent did not bother to call upon and provide hearing to the trust before passing the impugned order.

4.1. He further submitted that even otherwise the perusal of the impugned order makes it clear that the Collector had initiated the proceedings unilaterally and the same were concluded unilaterally. It clearly appears from the impugned order that the Collector did not thought it fit to verify the fact regarding use of the Kabrastan and only relied on the letter of the Mamlatdar.

4.2. He also submitted that the Collector had committed grave error in vesting the Kabrastan land in the Government. It is submitted that as pronounced by this Hon'ble Court as well as the settled principle of law is that once a Kabrastan is always a Kabrastan. The certificate issued by local Panchayat establishes the fact that even today also use of the land in question is for the purpose of Kabrastan. Such use cannot be closed and even if the use is closed the status of the land cannot be changed. He further submitted that even the respondents have admitted in their affidavit in reply that the land in question is used for the purpose of graveyard. He further submitted that bare reading of the impugned order makes it clear that though burial had taken place in past, this fact was ignored and with a view to deprive Muslim community of their last resting place various non existing reasons are mentioned in the impugned order. He also submitted that the entry of the impugned order was posted without following statutory requirement and the same requires to be quashed and set aside.

4.3. He has also relied upon a Judgment in the case of Syed Mohd. Salie Labbai (D), by Lrs. and Ors. v. Mohd. Hanifa (D) By Lrs. and Ors. reported in [1976] 4 SCC 782 to contend that once property became Wakf property it would continue to be Wakf property notwithstanding non-user by the Muslim community.

4.4. He has further submitted that the respondent has no jurisdiction to pass such an order as he lacks jurisdiction of switching over of the property and subsequent conversion. The Collector has tried to play with the sentiments of persons whose relatives have been buried in the said Kabrastan. That the respondent has vested the land in Government with an ulterior motive of allotting the said land to the builder lobby in coming years. In view of above, he has prayed to allow present petition.

5. Per contra, learned AGP, Mr. Kanara for the respondent-State has submitted that the impugned order is of 2006, while present petition is fled in 2009, therefore, there is delay of three years in fling present petition. He also submitted that Circle Officer, Champaner had made spot inspection and it was found that there are five graves (Kabars), which are 20 years old and rest of the land is lying vacant. He submitted that it appears that the land is lying idle and, therefore, looking to the future need for development of Pavagadh, the land in question was vested in Government. In this regard, he has also relied upon page 33, which is a Government Gazette with regard to publication of transaction of The Champaner Pavagadh Archaeological Park World Heritage Area Management Authority Act, 2006. He has also relied upon page 48, which is a letter dated 23.4.2006 for Denotifying the land in question for the purpose of development of the area. He has also relied upon further reply fled in compliance of order dated 20.2.2014 and submitted that there are only two muslim families in Champaner village. It is also submitted by him that no land is available which can be allotted to the petitioner-Trust for the purpose of graveyard as most of the land is of the ownership of the Forest Department. In view of these, he has prayed to dismiss present petition.

6. Considering the submissions made on behalf of the parties and the materials placed on record. From the document at Annexure-D, it is clear that the name of the trust was recorded in the revenue record in the year 1996. Even the entries of village form No. 7-12 show that the land in question is "kabrastan".

6.1. In the case of Syed Mohd. Salie Labbai (D), by Lrs. (Supra) it is held as under:-

"We are of the view that once a Kabarstan has been held to be a public graveyard then it vests in the public and constitutes a wakf and it cannot be divested by non-user but will always continue to be so whether it is used or not.

The following rules in order to determine whether a graveyard is a public or a private one may be stated:

(1) that even though there may be no direct evidence of dedication to the public, it may be presumed to be a public graveyard by immemorial user i.e. where corpses of the members of the Mahomedan community have been buried in a particular graveyard for a large number of years without any objection from the owner. The fact that the owner permits such burials will not make any difference at all;

(2) that if the grave-yard is a private a family grave-yard then it should contain the graves of only the founder, the members of his family or his descendants and no others. Once even in a family grave-yard members of the public are allowed to bury their dead, the private graveyard sheds its character and becomes a public grave-yard;

(3) that in order to prove that a graveyard is public by dedication it must be shown by multiplying instances of the character, nature and extent of the burials from time to time. In other words, there should be evidence to show that a large number of members of the Mahomedan community had buried their corpses from time to time in the graveyard. Once this is proved, the Court will presume that the graveyard is a public one; and

(4) that where a burial ground is mentioned as a public graveyard in either a revenue or historical papers that would be a conclusive proof to show the public character of the graveyard.

Applying these principles to the facts of the present case, it is clear that there are graves and even in the revenue records, it is shown as "kabrastan". Considering all these aspects, present petition is allowed."

6.2. As held in aforesaid case, the certificate issued by local Panchayat establishes the fact that even today also use of the land in question is for the purpose of Kabrastan. Not only that the respondents have also admitted in their affidavit in reply that the land in question is used for the purpose of graveyard. It also appears that the respondent did not give opportunity of hearing to the trust before passing the impugned order. It also found that the observations made by the authority are neither relevant nor rational. It is observed by the authority that there are less graves in the graveyard inspite of observing that only two Muslim families are residing in the nearby vicinity. One cannot expect that graveyard should be full always and if there are less graves, it cannot be said to be a ground to vest the land in Government.

7. Considering all these aspects, present petition is allowed. Order dated 16.9.2006 passed by Collector, Panchmahal-Godhra, Annexure-F to present petition, is quashed and set aside. Rule is made absolute accordingly. No order as to costs. Direct service is permitted.

Gujarat High Court in Shree Jangi Grampanchayat vs. State of Gujarat [18.11.2021]

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/Special Civil Application No. 14198 of 2021

Decided On: 18.11.2021

Shree Jangi Grampanchayat

Vs.

State of Gujarat

Hon'ble Judges/Coram: Dr. A.P. Thaker, J.

Counsels:

For Appellant/Petitioner/Plaintiff: R.D. Kinariwala

For Respondents/Defendant: Nikunj Kanara, AGP

ORDER

Dr. A.P. Thaker, J.

1. Heard learned advocate Mr. R.D. Kinariwala for the petitioner and learned AGP Mr. Nikunj Kanara for respondent-State. None has appeared on behalf of the private respondents though served.

2. By way of filing this petition, the petitioner has prayed for the following reliefs.

"(a) Your Lordships may be pleased to allow this petition.

(b) Your Lordships may be pleased to issue a writ or mandamus or any other appropriate writ, order or direction, directing the respondents herein to comply the order dated 17.01.2018, passed by the respondent no. 3 and further be pleased to direct the respondent no. 4 herein to remove an illegal encroachment and to hand over the peaceful and vacant possession of the Gauchar land bearing revenue survey no. 1001/Paiki of Village: Jangi, Taluka: Bhachau, District: Kutch.

(c) Pending admission, hearing and final disposal of this petition, be pleased to direct the respondents herein to direct the respondent no. 4 herein to remove an illegal encroachment from Gauchar land bearing revenue survey no. 1001/Paiki of Village: Jangi, Taluka: Bhachau, District: Kutch. And further be pleased to comply with the order dated 17.01.2018 passed by the respondent no. 3 herein;

(d) Be pleased to grant any other relief/s as may deem fir proper, in the interest of justice."

3. Learned advocate for the petitioner Mr. Kinnariwala has submitted that the petitioner is a Grampachanyat registered under the provisions of the Panchayat Act situated at village Jangi, Taluka: Bachau, District: Kutch. That the respondent no. 4 has made illegal encroachment upon survey no. 1001/Paiki admeasuring 1.00 hectors of land of the Panchayat and has installed wind mill on the said land. He has submitted that the said fact has already been reflected from the inspection carried out by the office of DILR, therefore, has requested to get it removed the wind mill from the Gauchar land. That the respondent no. 4 has admitted that due to some technical error, the respondent no. 4 had installed the wind mill at survey no. 1001/Paiki instead of survey no. 1000/Paiki. According to learned advocate Mr. Kinnariwala, this admission is sufficient to direct the authorities to remove the encroachment on the Gauchar land. Therefore, he has prayed to pass appropriate order in this regard and handover the peaceful possession of the land in question to the petitioner herein.

4. Learned AGP has submitted that considering the materials placed on record, appropriate order may be passed.

5. The decision of Apex Court the case of Jagpal Singh and others Vs. State of Punjab and others reported in 2011(11) SCC 396 is relied on by the learned advocate Mr. Kinariwala for the petitioner. The Apex Court has observed that all the State Governments in the country 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 GramSabha/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 were directed to do the needful, taking the help of other senior officers of the Governments. It was also observed that if long duration of such illegal occupation or huge expenditure in making constructions thereon must not be treated as justification for condoning this illegal act or for regularising the illegal possession.

6. Having considered the submissions made by both the sides, coupled with the documentary evidence placed on record, it appears that there is no dispute that the land in question is a Gauchar land of the panchayat, which was declared as Gauchar land vide order dated 30.09.1971, and the promulgation entry came to be mutated in the revenue record on 20.09.2008, vide entry no. 2565, which was came to be rectified vide entry no. 454 qua survey no. 1001 and accordingly, the name of the petitioner-Grampanchayat was reflected in the survey number. It also appears from the record that the respondent no. 4 ha installed the wind mill upon survey no. 1001/Paiki, admeasuring 1.00 hectors of land. It also appears that respondent no. 3-Mamlatdar of Bhachau had written letter to DILR, Bhuj-Kutch in this regard on 11.07.2016, to carry out an inspection for measurement of the land in question. It also appears from the record that the Mamlatdar, Bhachau has also allowed the case of the petitioner and had directed respondent no. 4 to evacuate the disputed land and handover the peaceful vacant possession of the Gauchar land. As per the DILR report, the respondent no. 4, encroached upon the government land and has also taken stand that due to some technical mistake the wind mill came to be installed in the Gauchar land of the panchayat. Thus, it is incumbent on the part of the respondent that compliance of the order of the Mamlatdar is made and the wind mill be removed from the Gauchar land of the panchayat. It is also duty of the respondent no. 4 to remove the illegal encroachment made upon the Gauchar land bearing survey no. 1001/Paiki of Village: Jangi, Taluka: Bhachau, District: Kutch and handover the peaceful possession to the panchayat.

7. Considering the aforesaid facts of the case, the present petition deserves to be allowed. Accordingly, the petition is allowed. The respondent no. 4 is hereby directed to remove the illegal encroachment made upon at the Gauchar land bearing survey no. 1001/Paiki of Village: Jangi, Taluka: Bhachau, District: Kutch and to handover the peaceful and vacant possession of the Gauchar land to the Panchayat, within a period of three months from the date of receipt of writ of this order. The rest of the respondents are directed to get the compliance of this order without fail.

8. With the aforesaid direction, the petition is allowed. No order as to costs.

Gujarat HC in Jignesh Maheshbhai Pandya vs. State of Gujarat & Ors. [16.07.2019]

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/Writ Petition (PIL) No. 104 of 2018 and Civil Application No. 1 of 2019

Decided On: 16.07.2019

Jignesh Maheshbhai Pandya

Versus

State of Gujarat and Ors.

Hon'ble Judges/Coram:

Anant S. Dave, Actg. C.J. and Biren Vaishnav, J.

Counsels:

For Appellant/Petitioner/Plaintiff: Amit M. Panchal

For Respondents/Defendant: Kamal Trivedi, Advocate General, Manisha Lavkumar, Government Pleader, Vinay B. Vishen, AGP, Mihir Joshi, Senior Advocate, Mrugen K. Purohit, Maulik Nanavati, Parth Bhatt and Manvi Damle, Advocates for Nanavati and Co.

ORDER

Anant S. Dave, Actg. C.J.

1. This Court once again has had the opportunity of lending its ear to a conflict between so called 'materialistic interests' and 'sustainable development'. It is trite that in the name of environmental development there is exploitation of Mother Earth. However, the present is a glaring case of thousands of hutment dwellers, residing in about 1457 hutment dwelling units and occupying pond/waste land for around four decades. These dwellers came to be displaced by demolishing their huts and on an assurance given by the respondent no. 2 - Vadodara Municipal Corporation for 'In-Situ' rehabilitation for which contract was given to respondent no. 4 through public notice based on the policy of Public Private Partnership (PPP) and as a part of the Pradhan Mantri Awas Yojana, Mukhya Mantri Awas Yojana and Gujarat Slum Areas (Improvement, Clearance and Redevelopment) Act, 1973. However, the said action has been opposed in this belated Writ Petition PIL on the ground that such 'In-Situ' rehabilitation of slum dwellers is not permissible on the pond/waste land so notified by the Irrigation Department of State of Gujarat under Section 5 of the Bombay Irrigation Act, 1879 and that it is contrary to law laid down by the Supreme Court of India as well as this Court. We, therefore, being conscious of the fact that we are expected to strike a mutual balance between protection of environmental resources and development of the mankind by exploring the possibility of protecting and preserving part of the total area of the water body, so earmarked by the Technical Committee as possible to revive and recharge have heard the petition at length which revolves around 'Kharabo Talavadi' situated at Revenue Survey No. 444, in village Tandalja, Taluka and District Vadodara admeasuring 48259 sq. mtrs and is occupied by almost 1457 hutment units.

2. Before proceeding with the hearing of the main petition, we have heard Civil Application filed by the hutment dwellers for impleading them as party respondents. As a result of hearing and going through the records, we find it to be in the fitness of things if the applicants of the application are given an opportunity of hearing. Therefore, the application is allowed and the applicants are impleaded as party respondents in the main petition.

3. Coming to the facts of the present case, the petitioner has preferred the present Public Interest Litigation for quashing and setting aside the process for Denotification of land, which is sought to be made as per "Letter of Acceptance" to respondent no. 4 dated 20.10.2016 from the office of Additional City Engineer, Vadodara Municipal Corporation in respect of granting approval to developer, M/s. Cube Construction Private Limited, Vadodara for undertaking work under First Vertical PPP for Rehabilitation and Redevelopment at Sahakarnagar at the land situated in village Tandalja, District Vadodara in T.P. Scheme No. 22, Revenue Survey No. 444, Final Plot No. 234, admeasuring 48,259 sq. mtrs.

3.1. As averred in the writ petition, the above area is notified as 'lake' ('Talav' in Gujarati) in Village Form No. 1 and vide notification dated 10.01.2005 by Department of Narmada and Water Resources, Water Supply and Kalpasar Department, Sachivalaya, Government of Gujarat for the purpose of development of slums under the Slum Rehabilitation and Redevelopment Scheme and under the Pradhan Mantri Awas Yojana, as per Standing Committee Resolution No. 339 of the Vadodara Municipal Corporation dated 29.09.2016 at the cost of Rs. 81,41,85,000/- and a premium amount of Rs. 15,16,11,111/- to be paid to Vadodara Municipal Corporation.

3.2. As averred in the writ petition and so submitted emphatically by learned advocate for the petitioner, the above exercise undertaken by respondents is in flagrant violation and with utter defiance and in breach of the directions issued by this Court in the judgement dated 02.08.2002 rendered in the case of Shailesh R. Shah vs. State of Gujarat and Others reported in 2002 (3) GLH 642 : 2002 Vol. 43 (3) GLR 2295 and also contrary to principles enumerated by the decisions of the Apex Court in the cases of M.C. Mehta vs. Union of India and Others reported in (1996) 8 SCC 462, Hinch Lal Tiwari vs. Kamala Devi and Others [(2001) 6 SCC 496], M.C. Mehta (Badkhal and Surajkund Lakes Matter) vs. Union of India and others [(1997) 3 SCC 388], R.K. Mittal and Others vs. State of Uttar Pradesh & Others [(2012) 2 SCC 232, M.K Balakrishnan(1) and Others vs. Union of India and Others [(2009) 5 SCC 507, Susetha vs. State of Tamil Nadu & Others [(2006) 6 SCC 543, Intellecutals Forum Tirupati vs. State of A.P and Others [(2006) 3 SCC 549, M. Velu vs. State of Tamil Nadu & Others [MANU/TN/0351/2010], Residence Welfare Association vs. State (NCT) of Delhi [MANU/DE/3993/2013, Consumer Action Group vs. Project Director and member Secretary [2010 SCC OnLine Mad 3989], Sandeep Brahmbhatt vs. State of Gujarat & Others [2002 (2) GLH 536].

3.3. In the above backdrop of contentions, it is submitted that at Sr. No. 147 Revenue Survey No. 444 is of Kharaba Talavadi situated in village Tandalja of Taluka and District Vadodara admeasuring 48259 sq. mtrs and it reveals 800 huts near Basil School in the notification dated 10.01.2005 issued under Section 5 of the Bombay Irrigation Act (Gujarat Amendment Act, 1982), 1879 by the Department of Narmada and Water Resources, Water Supply and Kalpsar Department. The above fact remains undisputed and keeping in mind law laid down by this Court as well as Apex Court in the above referred decisions along with solemn assertion and declaration made before this Court in earlier round of litigation pertaining to water bodies in the case of Sailesh R. Shah (supra), the land in question which is earmarked as 'tank poramboke' could not have been parted for any use other than development or recharging the water body. The prayer thus reveals that directions to be issued to respondents no. 1 to 3 to ensure that the water body as declared at Sr. No. 147 in the notification dated 10.01.2005 to be maintained and preserved as water body only and not to be alienated in any other manner or for any other purpose and further restraining respondents no. 1 to 3 from denotifying the land in Tandalja village, District Vadodara.

3.4. Reliance is placed on decisions to which reference is made in earlier part of the judgement namely Sailesh R. Shah (supra), Susetha (supra) about requirement of preserving water bodies/resources wherein the Apex Court referred to earlier case of Intellectual Forum, Tirupati (supra) where principles of sustainable development and inter generational equity were enumerated and the duties cast upon constitutional force to consider and direct the state authorities that even Directive Principles of State policy as reflected in paragraph no. 4 of the Constitution particularly Article 48A and 51A(g) vis-à-vis fundamental rights guaranteed by the Constitution of India including Articles 14, 19 and 21 are to be taken care of.

3.5. The case of Kamal Nath (supra) was also relied upon wherein the Apex Court considered 'Public Trust Doctrine' which is part of the Union liability and it extends to natural resources such as rivers, forests, seashores, air etc. for the purpose of protecting the ecosystem. In the above decision, the Apex Court considered the observations of the Apex Court in the case of Supreme Court of California in Mono Lake case reported in 33 Cal 3d 419 (National Audubon Society vs. Superior Court of Alpine County). Other decisions on the line namely voicing concern by the Apex Court about imminent need to conserve, protect and maintain ecological balance vis-à-vis sustainable development was considered as of utmost importance and Court should leave no stone unturned in seeing that natural resources are not scattered away or illegally used by unscrupulous elements namely some section of the society who undertake development work by indulging into construction for residential, commercial or industrial purpose disregarding environmental loss.

3.6. Further, in the case of Jagpal Singh and Others vs. State of Punjab and Others reported in (2011) 11 SCC 396, resolutions were passed by the Gram Panchayat for regularising common village land/community land and when water bodies exist namely either village pond or grazing land they need not be permitted to be encroached either by granting lease or regularizing in any manner. Lastly, in the case of Sarvepalli Ramaiah (Dead) As Per Legal Representatives and Others vs. District Collector, Chittoor District and Others reported in (2019) 4 SCC 500, once again the Apex Court relied on the decision in the case of Susetha (supra), Kamal Nath (supra) and Intellectual Forum, Tirupati (supra) by emphasizing the need to retain and restore the water bodies and held that water bodies are invaluable.

3.7. On the aspect of requirement of maintaining judicial discipline so as not to take a different view or express any doubt on the correctness of the decision of a co-ordinate bench of the same High Court though brought to the notice of the bench and requirement of strict self discipline so as to strengthen an inbuilt mechanism in the judicial system itself, our attention is invited to a decision of the Apex Court rendered in U.P Gram Panchayat Adhikari Sangh and Others vs. Daya Ram Saroj and Others [(2007) 2 SCC 138] and on the aforesaid premise, Mr. Amit Panchal, learned advocate for the petitioner submitted that the petitioner as such has no grievance if slum dwellers are rehabilitated elsewhere on any other government land but not on water bodies and in the facts of this case so identified since 1952 and details about the same is reflected in revenue record as such.

3.8. Further, notification dated 10.01.2005 itself is unequivocally clear that since decades it remained not only described and identified as such but accepted by all authorities namely District Collector, Vadodara, concerned departments of State of Gujarat and Vadodara Municipal Corporation. By taking us to various communications addressed by the authorities themselves inter, se he submitted that it would reveal that Revenue Survey No. 444 at Sr. No. 147 of the notification dated 10.01.2005 is Tank Poramboke ('Talavadi' in gujarati) Kharaba land.

3.9. On 27.08.2001 vide Government Resolution dated 27.07.2001, it was prohibited to alienate tanks/lakes/ponds/water bodies under the Department of Revenue, State of Gujarat in any manner and all authorities were directed in no uncertain terms that even no proposal be forwarded to make any modification or relaxation for usage of such land for the purpose other than preservation and recharging of water bodies. It is submitted that by solemn affirmation made by the then Principal Secretary, Urban Department, Government of Gujarat by filing affidavit dated 30.07.2002, it was accepted in due deference to the suggestion of the Court in that case that General Development Control Regulations were framed or shall be framed and care shall be taken by all Area Development Authorities and Town Development Authorities and Local Authorities to preserve and maintain water bodies and not to permit any construction over such lands.

3.10. That reference made about Gujarat Rural Urban Housing Scheme and PPP for Rehabilitation and Redevelopment viz-a-viz Pradhan Mantri Awas Yojana and contract awarded in favour of respondent no. 4 by respondent no. 2 - Vadodara Municipal Corporation is therefore contrary to law laid down by this Court in case of Sailesh R. Shah (supra) and other such decisions thereafter by the Apex Court to which reference is made earlier. It is further submitted that though an attempt is made by respondent no. 1 - State of Gujarat, respondent no. 2 - Vadodara Municipal Corporation and respondent no. 3 - District Collector, Vadodara by filing affidavits-in-reply to justify the stand that they have taken now about need to provide shelter to slum dwellers occupying more than 1400 huts as on date in the affidavit filed by them and report of the Expert Committee will not in any manner allow such authorities from committing any breach of their own notifications and the law laid down by the Apex Court as well as this Court.

3.11. Mr. Panchal, learned advocate for the petitioner invited our attention to an affidavit-in-rejoinder filed by the petitioner and submitted that respondent no. 2 - Vadodara Municipal Corporation is the local authority and has a role to play under the Gujarat Town Planning and Urban Development Act and is bound by the assertion of the deponent of the affidavit filed by the Principal Secretary, Urban Land Development Department on 30.07.2002. It is submitted that respondent no. 2 - Vadodara Municipal Corporation is responsible for creating such a situation whereby hutments are removed under the requirement of rehabilitation at the very place which is 'tank poramboke' waste land so notified as a water body. Therefore, none of the respondents no. 1, 2 and 3 are permitted to deviate from the stand taken by the Principal Secretary, Urban Land Development Department in his affidavit dated 30.07.2002 in the proceedings of earlier writ petition being Special Civil Application No. 10621 of 2000 and directions contained in paragraph no. 50 of judgement dated 02.08.2002 passed therein i.e. in the case of Sailesh R. Shah (supra).

3.12. According to learned advocate for the petitioner, if respondents are not made to stop by parting with water bodies of subject writ petition then this will become a routine exercise for them to wriggle out of the decision in the case of Sailesh R. Shah (supra) and will continue to exploit and misuse natural resources contrary to law and in blatant disregard to decisions of the Apex Court as well as this Court.

3.13. When the land is described, identified and notified as 'tank poramboke' any decision by respondent no. 2 to rehabilitate and redevelop such land including for the purpose of construction of premises/residential accommodation for slum dwellers by taking recourse to either Pradhan Mantri Awas Yojana or Mukhya Mantri Gruh Yojana is not permissible and therefore all decisions taken in this regard and finally allotting subject land in favour of respondent no. 4 for the purpose of rehabilitation of slum dwellers and redevelopment by awarding contract or entering into any understanding even through PPP is not permissible and the Court shall come down heavily upon respondents and the Writ Petition PIL be allowed by accepting the prayers made.

4. Mr. Kamal Trivedi, learned Advocate General appearing for respondent no. 1 submitted that so far as law laid down by this Court in the case of Sailesh R Shah (supra) and other decisions of the Apex Court are concerned, as such no reliance can be placed but all such decisions can be distinguished in the facts and circumstances of the case. He submitted that Form No. 7/12 of revenue record of the village under the heading "type and area of land" carried an endorsement as "Kharabo Talavdi" with a remark of "Bin Parvangi thi Zupada" (in gujarati) for land bearing Survey No. 444 admeasuring 48,259 sq. mtr in village Tandalja, District Vadodara.

4.1. As early as on 23.06.1976, part of the land in question was reserved for the purpose of establishment of hutment dwellers on a request made by Karmachari Mitra Mandal. Later, a certificate qua 4047 sq. mtr of the land was allotted in favour of Muktinagar Co-operative Housing Society Limited by respondent no. 3 - District Collector, Vadodara and thereafter on 27.08.2001, a Government Resolution was issued by Revenue Department whereby disposal of all reservoirs, lakes, ponds, water bodies etc. coming under the occupation of the Revenue Department came to be prohibited to which reference is made by learned advocate for the petitioner.

4.2. Further attention is invited to decision in the case of Sailesh R. Shah (supra) and the notification dated 10.01.2005 issued under Section 5 of the Bombay Irrigation Act (Gujarat Amendment Act, 1982), 1979. Apropos Mukhya Mantri Gruh Yojana to provide In-Situ rehabilitation of families residing in slums, Government Resolution was issued on 18.07.2013 whereby minimum 25sq. Mtr of land will be made available with constructed house with basic amenities with an obligation on the part of the private developer to arrange alternative accommodation of slum dwellers till their residential units are constructed and ready for occupation.

4.3. Various communications were addressed by respondent no. 2 - Vadodara Municipal Corporation to respondent no. 3 - District Collector, Vadodara namely communication dated 01.01.2014, Government Resolution dated 15.02.2016 whereby Credit Link Subsidy for providing easy and better housing facilities to the slum dwellers at the place of original residence was introduced linking with Pradhan Mantri Awas Yojana or Mukhya Mantri Gruh Yojana. It is brought to our notice that respondent no. 2 - Vadodara Municipal Corporation issued a notice inviting offers from the interested parties for the development of Integrated Group Housing Facility on the land in question at Sahakarnagar as early as on 11.07.2016 and 'Letter of Acceptance' came to be issued in favour of respondent no. 4 on 20.10.2016 for providing residential units and also for redevelopment. No doubt according to learned counsel when the subject land was notified as water body under the control of Department of Revenue as per Government Resolution dated 27.08.2001, the Collector was to submit a proposal after getting said land denotified. As per communication dated 16.11.2016 and letter addressed by District Collect within a month thereafter at the same time, respondent no. 2 - Vadodara Municipal Corporation also requested respondent no. 3 for allotment of land in question for the purpose of constructing residential units for In-Situ development for hutment dwellers by preserving and beautifying land admeasuring 4,200 sq. mtr as water body and onward proposal was sent by District Collector on 26.10.2017 for denotification and allotment of the land for the purpose.

4.4. Mr. Trivedi, learned Advocate General submitted that the State Government issued a Government Resolution on 26.03.2018 appointing a Technical Committee consisting of (i) Additional Collector, Vadodara, (ii) Superintending Engineer, Vadodara Irrigation Project, Vadodara, and (iii) City Engineer, Vadodara Municipal Corporation, Vadodara for the purpose of finding out the feasibility of allotment of the subject land with a query and report to be submitted on four different question namely how many sq. mtr of land is declared as water body, secondly how much area was in existence excluding water body and including the same, whether water was being filled in or filled out in the water body before existence of slum and fourthly, how much area of notified water body where inflow of water existed etc. and the report was submitted by the above Technical Committee along with a Rojkam dated 29.04.2018 which revealed that as per panchnama drawn on 17.03.2015 total land admeasuring about 4200 sq. mtrs is in the form of large 'pit' and about 3000 sq. mtrs is open land and on the remaining land admeasuring about 41,059 sq. mtrs, there are hutments along with religious places and further there was no sign of accumulation of water on the land in question but during monsoon such an accumulation of water takes place and that was also limited to large pit of the land in question. He submitted that the writ petition was thereafter filed in the year 2018.

4.5. Therefore, it is submitted that in the facts and circumstances of the case, when a decision is taken by the authorities namely respondents no. 2 & 3 and allotment of subject land is already made in favour of respondent no. 4 and only part of the total land is a water body, pragmatic view is to be taken when such findings are submitted by the Technical/Expert Committee.

4.6. Mr. Kamal Trivedi, learned Advocate General then distinguished the decisions relied on by Mr. Amit Panchal, learned advocate for the petitioner and submitted that the above decisions are not applicable on the facts and circumstances of the presence case and in fact law laid down by the Apex Court no doubt emphasizes protecting resources and redevelopment of water bodies but at the same time when such an exercise was not possible, a limited deviation is made by taking individual care that no further damage is caused. In his submissions, learned Advocate General emphasized the need for harmonizing between requirement, protection of natural resources viz-a-viz acute need for rehabilitation of slum dwellers by balancing the interests since Public Interest Litigation is not adversary so as to benefit all and in the facts of this case, 1400 huts are already removed by the Corporation and even more than 5000 customers are awaiting shelters as a part of Pradhan Mantri Awas Yojana or Mukhya Mantri Gruh Yojana for which contract is finally awarded in the year 2016. He submitted that the writ petition therefore deserves to be dismissed.

5. Mr. Mihir Joshi, learned advocate for the respondent no. 4 at the outset would oppose maintainability of the writ petition PIL at the behest of the petitioner belatedly namely after two years of finality of the contract awarded by respondent no. 2 in favour of respondent no. 4 after issuing a notice inviting offers on 11.07.2016 and 'Letter of Acceptance' was issued on 20.10.2016 and particularly when the petitioner had knowledge of such public interest and now at this stage respondent no. 4 has invested a huge amount and is paying monthly charges in favour of hutment dwellers who are already removed as a part of the policy of In-Situ development and has an obligation to arrange alternative accommodation till the residential units are constructed on the land in question and they are shifted. He submitted that such a policy has statutory force in addition to the Gujarat Slum Areas (Improvement, Clearance and Redevelopment) Act, 1973 which creates an obligation on the part of the State Government.

5.1. Mr. Joshi submitted that respondent no. 4 - Private Developer is paying Rs. 2,000/- per month to each eligible hutment dweller/unit holder through Bank and about Rs. 28.54 lakhs are paid to 1427 eligible hutment dwellers very month and other infrastructural and establishment expenditure where a monthly cost borne by respondent no. 4 is about Rs. 4 crore. Our attention is invited to the project summary, project development and Bidding Process, public notice issued and communication addressed to Bank about transmitting amount of monthly expenses for 1427 hutment dwellers.

5.2. According to learned Senior Counsel appearing for respondent no. 4, the present writ petition PIL is not going to subserve any public interest and judgements relied on by learned advocate for the petitioner are not to be read and interpreted like Euclid's theorem but by taking into consideration ratio decidendi. In support of his submissions that when possibility of revival of water bodies is ruled out and contract in favour of respondent no. 4 is concluded finally, a belated attempt on the part of the petitioner to invoke extraordinary jurisdiction by filing Public Interest Litigation under Article 226 of the Constitution of India is contrary to law laid down in the case of Delhi Development Authority vs. Rajendra Singh and Others reported in (2009) 8 SCC 582. It is submitted that the appeal in the present case is settled for all purposes.

5.3. Mr. Joshi, learned Senior Counsel for the respondent no. 4 has also relied on submissions made on the factual scenario and contents of the affidavits-in-reply filed by respondents no. 1 to 3 that how Technical Expert Committee concluded about part of the whole subject land may have traits of water body which is not more than 2400 sq. mtrs. He has also opposed any kind of concession to be given by taking away contracted land for rehabilitation of slum dwellers and redevelopment project. It is submitted that in absence of merit in the present writ petition PIL, the same deserves to be dismissed.

6. Mr. Maulik Nanavati, learned advocate for the respondent no. 2 - Vadodara Municipal Corporation adopted the submissions of learned Advocate General on behalf of respondents no. 1 and 3 and submitted that the Corporation has followed a fair and transparent policy for awarding contract in favour of respondent no. 4 upon issuance of notice inviting tender by way of public advertisement and now slum dwellers are already removed from the place occupied by them with a promise to rehabilitate them at the very same place and therefore any interference by this Court at this stage will not serve any public good but on the contrary will create an irreversible situation. As a part of public obligation, respondent no. 2 - Vadodara Municipal Corporation was following various schemes like Pradhan Mantri Awas Yojana or Mukhya Mantri Gruh Yojana for which the Corporation/Local authorities were directed to rehabilitate slums and that truthful attempts are made by the Corporation namely to preserve and maintain water bodies which really exist and beautify the same and to rehabilitate slum dwellers. Both the above averred objects cannot be termed contrary to law laid down by this Court or the Apex Court. He submitted that therefore the writ petition PIL deserves to be dismissed.

7. Mr. M.T.M. Hakim, learned advocate for the slum dwellers adopted the submissions made by learned Advocate General, Mr. Mihir Joshi, learned Senior Counsel for respondent no. 4 and Mr. Maulik Nanavati, learned counsel for respondent no. 2 and submitted that for decades the slum dwellers were occupying the subject land without any disturbance and pursuant to various schemes so notified by the State and Central governments, it is hoped that a small roof will be provided for their shelter with some basic amenities which should not be taken away particularly when the Gujarat Slum Areas (Improvement, Clearance and Redevelopment) Act, 1973 is in force whereby name of slum Sahakar Nagar, Opposite Muktinagar Society, Tandalja Road is identified and the owner of the land is State Government for which now rehabilitation is undertaken. Accordingly, it is submitted that petition deserves to be dismissed.

8. Having heard learned advocates appearing for the respective parties and from the entire conspectus of facts what is evident is that the genesis of this PIL is the litigation initiated by way of PIL being Special Civil Application No. 10621 of 2000 (Sailesh R. Shah (supra)) relating to protection, preservation and improvement of water bodies in the State and safeguarding them against encroachments.

8.1. An affidavit dated 30.07.2002 was filed therein stating that the government would collect data from the development plans about water bodies and they will be notified by the government. This led to the issuance of the notification dated 10.01.2005. Reading the notification, it indicates that the lands in question i.e. Survey No. 444 at Tandalja has been referred to as "Kharabo Talavdi" i.e. waste land/water body along with encroachment. The land is admeasuring 48,250 sq. mtrs which consists not only water body but waste land which is flat and occupied by hutment dwellers.

8.2. Similarly, reading of the affidavit filed on behalf of the Vadodara Municipal Corporation would indicate that the claim of the petitioner that the whole parcel of land is a water body seems misplaced. The revenue records describe it as 'Kharabo Talavdi' i.e. waste land - water body or Tank Poramboke. Even when the lake did exist it was on the land admeasuring 4000 to 5000 sq. mtrs and even today the cupped lake/pit is only to that extent. The claim therefore that the entire piece of land is a water body exclusive is not correct.

8.3. It is pertinent to note that as early as in the year 1976 the land was reserved for the purpose of establishing a society for people living in the slums. Slums were established on the land since the year 1978-79. In the year 1988, the land was earmarked as a government waste land. The Corporation's affidavit clearly reveals that since the year 1951 there is no lake. The land in question has an indentation of about 4,200 sq. mtrs where water gets collected during monsoon.

9. The chronology of events so submitted by the learned Advocate General would indicate that the State taking into consideration all the aspects and keeping in mind the notifications dated 27.08.2001 and 10.01.2005 undertook the exercise of identifying the exact area of the water body which is a part of the waste land so notified vide notification dated 10.01.2005. With the objective of providing affordable housing and making urban areas slum free by providing housing to the poor at free of cost or at subsidised rates, the State Government introduced a policy vide resolution dated 17.08.2013 providing for In-Situ rehabilitation of approximately 7 lakhs families residing in the slums. The Central Government also announced a scheme to provide free houses to the hutment dwellers under the Scheme of Pradhan Mantri Awas Yojana. Here too the object was to utilize available land in optimal manner and to improve the neighbourhood at low or minimal cost. Accordingly, the Vadodara Municipal Corporation vide its resolution dated 21.11.2013 resolved to notify Sahakar Nagar, Tandalja as slum area and the Government of Gujarat issued a notification dated 27.01.2014 notifying the area in exercise of powers under clause (j) of Section 2 of the Gujarat Slum Areas (Improvement, Clearance and Redevelopment) Act, 1973. The Vadodara Municipal Corporation on being satisfied that the area, as per the provisions of the Gujarat Slums Areas Act, notified the land in question for improvement, clearance and redevelopment, invited expression of interest.

9.1. In the backdrop of the above, what followed is that the Revenue Department on 16.11.2016 addressed a letter to the Respondent No. 3 Collector, inter alia, informing that vide Government Resolution dated 27.08.2001, the State Government has put a restriction on the disposal of the land notified as 'talav' and thus, requested the Respondent No. 3 Collector to submit a proposal after getting the said land denotified or submit a proposal for effecting development on the land surrounding 'talav'. Respondent No. 3 Collector accordingly addressed a letter to the Respondent No. 2 Corporation, inter alia, conveying the aforesaid information. Respondent No. 2 Corporation addressed a letter to Respondent No. 3 Collector, inter alia, requesting for allotment of land in question for the purpose of constructing residential units for In-Situ development for hutment dwellers on the land in question after denotification, while preserving and beautifying the land admeasuring about 4,200 sq. mtr. as waterbody.

9.2. Thereafter, on 11.07.2016 an advertisement was issued for development of Integrated Group Housing Facilities. The project implementation required providing transit accommodation to 1427 slum units situated on the land in question. Pursuant to the tender process, a Letter of Acceptance was issued on 20.10.2016 to the respondent no. 4. The cost of slum rehabilitation/construction was Rs. 81,41,85,000/- and slum dwellers were shifted to transit accommodations where the amount of Rs. 2000/- each is to be paid to the slum dwellers towards such accommodation pending completion. Rs. 4 crores have already been spent.

10. From the communications as above, what is evident is that with the sole object of maintaining a balance between sustainable development and ecology/environment, an exercise was undertaken by the authorities of the State of fulfilling the twin objective of slum redevelopment and preservation of a lake/water body on the parcel of land. As it is discernible from the revenue records, out of the aforesaid land admeasuring 48,259 sq. mtrs in the Final Plot No. 234 only 4200 sq. mtrs is a water body/indented portion as is so described in the revenue records also as "Kharabo Talavdi -Waste Land - Water body - Tank - Poramboke". Revenue records reveal a pit of 4200 sq. mtrs which both the State and the Corporation have gone on record to assure that the same will be rejuvenated, beautified and preserved as a lake/water body. The Court has to preserve the delicate balance between the two objectives of sustainable development and ecology.

11. It is a fact that the urban poor who live in slums face serious issues of hygiene, water, sanitation and health. It is with an object of creating a better living environment that the 'In 'Situ Slum Development' program is introduced under the Awas Yojana. The State with this benevolent avowed object appointed a Technical Committee when the Deputy Secretary (Panchayats), Narmada, Water Supply and Kalpasar Department stated that the land can only be denotified by the Urban Development Department. The Technical Committee inspected the area/land in question to decide or inspect as to which and what area of the land in question is covered under the Water body and which is occupied by slums. A report was sought with the following information:

(i) How many square meters of land is declared as waterbody?

(ii) Within how much area, the slum was in existence? (without the waterbody and including the same)

(iii) Whether the water was being filled in the waterbody because of the existence of slum and if no, then since how long the water was not being filled in?

(iv) Within how much area of notified waterbody, there was inflow of water and within how much area thereof, there was slum.

11.1. The Technical Committee physically verified the land and drew a Rojkam dated 19.04.2018 and a report was submitted on 25.04.2018. The highlights of the report are as under:

(i) That total land admeasuring about 48,259 sq. mtrs has been notified as waterbody by the Narmada, Water Resources, Water Supply and Kalpsar Department.

(ii) That pursuant to the Panchnama drawn on 17.03.2015, total land admeasuring about 4,200 sq. mtrs is in the form of large 'pit', whereas, land admeasuring about 3000 sq. mtrs is an open land and on the remaining land admeasuring about 41,059 sq. mtrs, there are hutments along with religious places.

(iii) It appears that in the recent past, there is no sign of accumulation of water on the land in question, however, during monsoons, accumulation of water takes place and that is limited to the large 'pit' forming part of the land in question.

(iv) It appears that there is no source of water and still total land in question i.e. 48,259 sq. mtrs was notified as waterbody. Moreover, out of that total land admeasuring 48,259 sq. mtrs, existence of hutments and religious places over the land admeasuring about 41,059 sq. mtrs. could be believed.

12. What is therefore evident is that right from the beginning the land was designated as a "Sarkari Kharabo Talav" - Waste Land/Poramboke - Water body/Tank. There exists a large pit admeasuring 4200 sq. mtrs where water gets accumulated during monsoon whereas rest of the land, as stated in the affidavit and based on revenue records and photographs is plain land.

13. The apprehensions voiced by the petitioner therefore that the entire parcel of land is a water body are therefore misconceived and misplaced. As far as the existing area of water body of 4200 sq. mtrs is concerned the Corporation and the State authorities have on affidavit assured this Court of rejuvenating and beautifying the same. We, therefore, need to strike a balance in our care of the environment in juxtaposition with sustainable development. The hutment dwellers who have moved out to make way for construction of suitable housing under the Awas Yojana also deserve to be given their share in the economy of sustainability. It is in this context that our views are echoed through the relevant paragraphs in the case of Intellectual Forum, Tirupati (supra).

"68. The respondents, however, have taken the plea that the actions taken by the Government were in pursuance of urgent needs of development. The debate between the developmental and economic needs and that of the environment is an enduring one, since if environment is destroyed for any purpose without a compelling developmental cause, it will most probably run foul of the executive and judicial safeguards. However, this court has often faced situations where the needs of environmental protection have been pitched against the demands of economic development. In response to this difficulty, policy makers and judicial bodies across the world have produced the concept of "sustainable development". This concept, as defined in the 1987 report of the World Commission on Environment and Development (Brundtland Report) defines it as "Development that meets the needs of the present without compromising the ability of the future generations to meet their own needs". Returning to the Stockholm Convention, a support of such a notion can be found in Paragraph 13, which states:

"In order to achieve a more rational management of resources and thus to improve the environment, States should adopt an integrated and coordinated approach to their development planning so as to ensure that development is compatible with the need to protect and improve environment for the benefit of their population."

70. This court in the case of Essar Oil v. Halar Utkarsh Samiti, was pleased to expound on this. Their Lordships held: (SCC p. 406, Para 27]

"27. This, therefore, is the sole aim, namely, to balance economic and social needs on the one hand with environmental considerations on the other. But in a sense all development is an environmental threat. Indeed, the very existence of humanity and the rapid increase in population together with the consequential demands to sustain the population has resulted in the concreting of open lands, cutting down of forests, filling up of lakes and the pollution of water resources and the very air that we breathe. However there need not necessarily be a deadlock between development on the one hand and the environment on the other. The objective of all laws on environment should be to create harmony between the two since neither one can be sacrificed at the altar of the other. "

83. On the other hand, we cannot also shut our eyes that shelter is one of the basic human needs just next to food and clothing. Need for a National Housing and Habitat Policy emerges from the growing requirements of shelter and related infrastructure. These requirements are growing in the context of rapid pace of urbanization, increasing migration from rural to urban centres in search of livelihood, mis-match between demand and supply of sites and services at affordable cost and inability of most new and poorer urban settlers to access formal land markets in urban areas due to high costs and their own lower incomes, leading to a non-sustainable situation. This policy intends to promote sustainable development of habitat in the country, with a view to ensure equitable supply of land, shelter and services at affordable prices.

84. The World has reached a level of growth in the 21st Century as never before envisaged. While the crisis of economic growth is still on, the key question which often arises and the Courts are asked to adjudicate upon is whether economic growth can supersede the concern for environmental protection and whether sustainable development which can be achieved only by way of protecting the environment and conserving the natural resources for the benefit of the humanity and future generations could be ignored in the garb of economic growth or compelling human necessity. The growth and development process are terms without any content, without an inkling as to the substance of their end results. This inevitably leaves us to the conception of growth and development which sustains from one generation to the next in order to secure 'our common future'. In pursuit of development, focus has to be on sustainability of development and policies towards that end have to be earnestly formulated and sincerely observed. As Prof. Weiss puts it, "conservation, however, always takes a back seat in times of economic stress." It is now an accepted social principle that all human beings have a fundamental right to a healthy environment, commensurate with their well being, coupled with a corresponding duty of ensuring that resources are conserved and preserved in such a way that present as well as the future generations are aware of them equally."

14. Keeping the aforesaid principles in view, we do not see any reason to stall the project of rehabilitation and redevelopment of the slum area at Sahakarnagar, Opp. Mukti Nagar Society, Tandalja Road, Tandalja in Revenue Survey No. 444, T.P. No. 22, F.P. No. 234 at Vadodara.

15. In addition to what we have said above, what is apparent is that the redevelopment was notified on 29.01.2014. The tender process commenced in July 2016, the respondent no. 4 was issued a letter of acceptance in October 2016. The work was to be completed in 18 months. The construction had started in November 2016 and the slum dwellers were evicted in July 2017. Without bringing all these facts on record, the PIL was moved in May 2018. Clearly, the PIL was barred by delay and latches. However, since we have heard this writ petition PIL at length on merit, objections raised by Mr. Mihir Joshi, learned Senior Counsel appearing for respondent no. 4 about not to entertain the writ petition solely on the ground of two years of delay in challenging the contract awarded in favour of respondent no. 4 is not gone into. We therefore dismiss the PIL and vacate the interim relief granted vide order dated 28.05.2018.

16. While parting we direct that the participants in the project on the land in question shall rejuvenate and beautify the lake/water body in the 4200 sq. mtrs area so be declared as a water body and see that the water body is preserved in the true spirit of the declaration made before this Court in the litigation namely Special Civil Application No. 10621 of 2000 i.e. Sailesh R. Shah (supra) and in the present proceedings.

17. Petition is accordingly dismissed. Interim relief stands vacated.

18. After completion of dictation of judgement, learned advocate for the petitioner seeks stay of the present order for a period of two weeks. The said request has been vehemently opposed by learned advocates for the respondents. Considering the fact as noted above that the project has not seen the light of the day since it was started i.e. since 2016, we are not inclined to grant any further relief to the petitioner. The issue concerns rehabilitation of slum dwellers who are staying in transit accommodation and due to the operation of the interim stay the construction of their houses under the Awas Yojana has been stalled. Request is accordingly rejected.

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