Gujarat High Court
Pachhat Varga Shramjivi Samudaik ... vs Haribhai Mevabhai And Ors. on 5 October, 1993
Equivalent citations: (1994)1GLR731
JUDGMENT R.K. Abichandani, J.
1. The petitioners seek cancellation of the order made by the State Government on 20th October, 1986 at Annexure "E" to the petition, made under Section 305 of the Gujarat Panchayats Act, 1961 (hereinafter referred to as "the Act") by which the order of Collector, Banaskantha passed on 10-5-1986 resuming the disputed grazing land admeasuring 300 Acres from Survey No. 413 of village Khardosan for the purpose of allotting it as resolved by the Panchayat.
2. Admittedly, Survey No. 413 admeasuring about 540 Acres of village Khardosan was a gaucher land which vested in the Panchayat under the provisions of Section 96(1) of the Act. There was a demand of the said land by the petitioners since 1979 for agricultural purposes. It appears that the respondent No. 4-Gram Panchayat rejected that proposal by its resolution dated 29th February, 1984. The petitioners pursued the matter pointing out that they were landless labourers belonging to a down-trodden class. It appears that on 31-3-1986 the respondent-Panchayat passed the resolution bearing No. 24, resolving that 300 Acres of the land out of Survey No. 413 may be given to petitioner No. 1-Society by the Government after resuming it. Pursuant to the resolution passed by the Panchayat, the Collector, Banaskantha passed an order on 10th May, 1986 resuming 300 Acres of land from Survey No. 413 for the purpose of its allotment to the petitioner No. 1-Co-operative Society, as mentioned in the resolution of the Panchayat. It appears that the decision of the Collector was challenged by one Haribhai, Police Patel of the village invoking the revisional powers of the Government under Section 305 of the Act. The revisional authority taking note of the fact that there were 3,260 of cattle heads as against gaucher land of about 540 Acres and the fact that the village people were not given any hearing before extinguishing the grazing rights over this land, which was earmarked for free pasturage, found that the Collector had committed an error in resuming the land without making necessary enquiry in the matter. It was held that the Collector ought to have taken into account the purpose for which the land was set apart and the adverse effect that the resumption would have had. The revisional authority, therefore, set aside the order of the Collector and directed the disputed land to be treated as gaucher land as before.
3. Mr. S.J. Joshi, learned Counsel appearing for the petitioners submitted that the land was resumed for the purpose of allocation to the petitioner No. 1-Society, whose members were landless labourers and poor Harijans. He submitted that resumption for such purpose was resumption for a public purpose as envisaged by Section 96(2) of the Act. He argued that the revisional authority had ignored the humanitarian aspect of the matter on the basis of which human beings ought to have priority over cattle. It was further contended that no hearing was required to be given by the provisions of Section 96(4) while resuming gaucher land. According to him the land had vested in the Panchayat, which was a body corporate under Section 7 of the Act, competent to acquire and hold property. The property which vested in the Panchayat under Section 96(1) could be resumed under Section 96(4) for a public purpose and if at all, Panchayat was required to be heard and none else. He submitted that the free pasturage rights if any in the glazing lands stood abolished at the time when the grazing lands were vested by the State Government in the Panchayat under Section 96(1) of the land. Therefore, if any hearing was required to be given, that stage had long passed. He submitted that the revisional authority while observing that hearing ought to have been given by the Collector and that the Collector should have enquired in the matter before making any order, had simply set aside the order of the Collector without directing him to enquire into the matter.
4. Miss K.M. Shah, learned Advocate appearing for the respondents Nos. 1 and 4 submitted that the impugned order was validly made by the Government in exercise of its power under Section 305 of the Act and there was no ground for this Court to exercise its writ jurisdiction under Article 227 of the Constitution of India against the impugned order. She placed reliance on a public notice dated 24th February, 1992 which was produced by the petitioners alongwith their Civil Application No. 923 of 1992 to point out that in the proceedings for resumption of land from the same Survey No. 413 for other public purpose, a notice was issued inviting objections. She pointed out that such notices are being given wide publicity, so that the villagers who intend to object, may do so.
5. There is no dispute about the fact that the land bearing Survey No, 413 of village Khardosan admeasuring about 540 Acres was set apart for free pasturage of cattle. This grazing land admittedly came to be vested in the respondent No. 4-Gram Panchayat under the provisions of Section 96(1) of the Act, Even if the land vested in the Panchayat, it continued to be used as gaucher land. It is also an admitted fact that the petitioner No. 1-Society was making efforts to get land for its members from the said grazing land. Initially, the Panchayat by its resolution dated 29-2-1984 rejected the proposal of the petitioners. According to the petitioners, they continued their efforts in various quarters and ultimately, the Panchayat passed resolution No. 24 on 31-3-1986 unanimously resolving that 300 Acres of land out of Survey No. 413 be given to the petitioner No. 1-Society and for that purpose the Government be allowed to resume the land without payment of any compensation to the Panchayat. The Panchayat in its affidavit-in-reply has taken up a stand that mis resolution was not passed at the meeting and it was concocted by Talati and Circle Inspector. Coming to know about the Collector's order, the Police Patel Haribhai challenged the same before the revisional authority. It appears that before the revisional authority, a contention was sought to be raised by the respondent No. 1 that Sarpanch had not put his signature in the resolution and the matter was concocted by Talati. However, no one remained present on behalf of the Panchayat. It appears that since the revisional authority decided the matter on the question of hearing, it did not give any finding on the question as to whether the resolution was in fact passed by the Panchayat.
6. The principal question that arises for consideration is as to whether free pasturage over grazing land has any element of legal right and if so, whether any opportunity of hearing is required to be given to those who may be affected by resumption of such grazing land for other public purpose.
7. The rights of pasturage claimed by a whole body of villagers would not be easements properly so called because they are not privileges attached to individuals in respect of their lands. These are rights claimed for a fluctuating and unascertained body of persons who constitute the inhabitants of a particular village. These are rights sometimes described as intermediate between public and private rights and they attach to certain class of persons or portions of the public and have their origin in custom. On proof of the fact of enjoyment of the right of pasturage over waste land from time immemorial, there could be no difficulty in the way of finding a legal origin of the right claimed. A right of pasturage claimed by the inhabitants of a village over Government waste lands could have been acquired by prescription against the State.
8. It appears that before the enactment of the Land Revenue Code, 1879, the Bombay Government had assumed that it possessed the inherent right to make Rules for the regulation of the pasturage of its waste land and to control its user by the villagers.
9. Rule 16 of the Rules made in 1848-49 by the Government of Bombay for the guidance of the Revenue Officers directed the grazing of unused Government land to be sold or to be auctioned annually "a reasonable portion being set aside for the free pasturage of such villages as being hitherto and enjoy the right". By Resolution No. 103 of 1853 the Government had directed the land assigned at the settlement as free, not to be resumed without the sanction of the Revenue Commissioner. Thereafter, by Section 32 of Bombay Act I of 1865 which gave legislative sanction to the introduction of the survey settlement, the following provision was made:
A Survey or Settlement Officer may set apart unoccupied lands in unalienated villages for free pasturage of village cattle and lands assigned specially for any such purpose shall not be otherwise appropriated or assigned without the sanction of the Revenue Commissioner.
10. The Bombay Land Revenue Code, 1879 (hereinafter referred to as 'the Code'), repeats the same provisions on this aspect. Section 38 inter alia provides that it shall be lawful for the Survey Officers whilst survey operations are proceeding, and, at any time for the Collector, to set apart lands, the property of Government, for free pasturage for the village cattle, and that the land specially assigned for any such purpose shall not be otherwise used without the sanction of the Collector. It is provided that in the disposal of land under Section 37 of the Code, due regard shall be had to all such special assignments. Section 39 indicates that the right of grazing on free pasturage lands shall extend only to the cattle of the village or villagers to which such lands belong or have been assigned and shall be regulated by Rules to be framed from time to time either generally or in any particular instance, prescribed by the Collector with the sanction of the State Government. These statutory provisions thus, clearly recognize the claims of the villagers to free pasturage over the lands set apart for free pasturage for the village cattle. The villagers of a specified village would be entitled to rights of free pasturage over such lands within the limits of their village. The villagers can advance a claim against the Government to have the lands set apart for free pasturage, in view of this statutory provisions.
11. On plain reading of Section 38 of the Code, it would appear that once land is set apart for free pasturage of the village cattle, it shall not be used for any other purpose without the sanction of the Collector. Even when the land of this nature is to be disposed of under Section 37 of the Code, the Collector is required to have due regard to such special assignment of land. Section 39 recognizes grazing on free pasturage lands which are earmarked for such purpose under Section 38 as a right of the concerned villagers. Admittedly, the Government have prescribed the cattle to land ratio for setting apart adequate area of land for such purpose. When the law has recognized the existence of the right of the villagers over free pasturage lands, it is obvious that any action which has the effect of extinguishment of such right would adversely affect the graziers who are entitled to it. It, therefore, follows that before their right is extinguished, they should be given an opportunity of having their say in the matter. Such a course is even implied in the provisions of Section 38 of the Code, which requires the Collector to have due regard to such special assignment while disposing of the land under Section 37 of the Code. Having regard to the nature of the right, it will not be possible in such cases to give individual notices but inviting of objections against extinguishment of the right of free pasturage would be the minimum that an authority can do to protect its action from any arbitrariness that may creep in, if the power is exercised without reference to the rights which are statutorily recognized. Therefore, the view of the revisional authority as taken that the Collector could not have resumed the land without examining the free pasturage rights of the villagers is an enlightened view, which is in consonance with the law. It cannot be said that the Government in recognizing the necessity of hearing the affected villagers as regards their right of free pasturage over the lands set apart for the purpose, has committed any jurisdictional error. It is, therefore, not possible to accept the contentions canvassed on behalf of the petitioners.
12. While upholding the requirement of giving a hearing while extinguishing such rights by at least inviting objections against the course sought to be adopted by the Collector, one cannot ignore the fact that gaucher land may be required for other important public purposes. The resumption of land under Section 96(4) for the purpose of allotting it to landless labourers and poor Harijans would undoubtedly be a public purpose for which the lands can be validly resumed. As succinctly put by this Court (S.H. Sheth, J.) in Special Civil Application No. 2383 of 1978 decided on 18-12-1978, human beings must have priority over cattle. It was held that grant of land to Society of backward class persons out of gaucher was something which could not be called in question in a Writ Petition. It is clear that with a view to ameliorate the lot of down-trodden class of the populace, it is open to the Government to allot land to them for cultivation. Such allotment would be for a public purpose as envisaged by Section 96(4) of the Act. In this view of the matter, the Government ought to have, while setting aside the order of the Collector on the ground that he had not enquired into the matter and had not given opportunity to the affected persons while extinguishing the free pasturage right left it open for the Collector to consider the matter afresh by giving an opportunity to the affected persons by inviting their objections against the extinguishment of their rights.
12.1. The Collector while resuming the land, can keep in view the law laid down by this Court in Punand Gram Panchayat v. State of Gujarat and Ors. 1992 (1) GLH 19, Samadhyala Gram Panchayat v. State of Gujarat and Ors. , Purshottamdas Chaturbhai v. Shankarbhai Harijan and Ors. (1978) XIX GLR 341 and Gopalji Jivarajbhai Ganatra v. S.A. Munsha and Ors. 1986 GLH 841 : 1987 (1) GLR 183, which all indicate that the land could be resumed for the public purpose of its allotment to the rural labourers belonging to backward class and Scheduled Castes.
13. In view of the above circumstances, the impugned order of the Government is upheld. It shall, however, be open for the Collector to consider the matter afresh in the light of the observations made in this judgment. Rule is discharged with no order as to costs.