Gujarat High Court
Maliben Rameshbhai Bhutiya vs Special Secretary(Appeals) on 16 April, 2013
Author: Harsha Devani
Bench: Harsha Devani
MALIBEN RAMESHBHAI BHUTIYA....Petitioner(s)V/SSPECIAL SECRETARY(APPEALS) C/SCA/16131/2012 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 16131 of 2012 With SPECIAL CIVIL APPLICATION NO. 16140 of 2012 and SPECIAL CIVIL APPLICATION NO. 16141 of 2012 ================================================================ MALIBEN RAMESHBHAI BHUTIYA....Petitioner(s) Versus SPECIAL SECRETARY(APPEALS) & 1....Respondent(s) ================================================================ Appearance: MR VIMAL A PUROHIT, ADVOCATE for the Petitioners ================================================================ CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI Date : 16/04/2013 ORAL ORDER
1. Since all these petitions involve common facts and are directed against similar orders passed by the revisional authority, the same were taken up for hearing and are disposed of by this common judgement.
For the sake of convenience, reference is made to the facts as stated in Special Civil Application No.16131 of 2012. The Mamlatdar, Ranavav initiated proceedings under section 61 of the Bombay Land Revenue Code, 1879 (hereinafter referred to as the Code ) for removing the encroachments on the land bearing revenue survey No.309 paiki alleged to have been made by the petitioner. After hearing the petitioner, the Mamlatdar, by an order dated 22.03.2001, directed the petitioner to vacate the subject land. The petitioner was also directed to deposit certain amount for having used the land for a period of two years from 1999. On 12th January, 2001, the petitioner made an application before the District Collector to regularize the encroachment made by the petitioner to the extent of 900 square metres over the subject land. By an order dated 07.07.2003, as a pre-condition, for regularizing the encroachment in respect of 900 square metres of land bearing revenue survey No.309 paiki, the Mamlatdar directed the petitioner to vacate about 1,860 square metres of land occupied by her. It was also mentioned that unless the said area is cleared, the application made by the petitioner would not be considered. Pursuant thereto, the petitioner cleared land to the extent of 1,860 square metres.
By a proposal dated 2/9.06.2003, the Mamlatdar recommended the case of the petitioner for regularization. It appears that the Village Panchayat, by a resolution No.4 dated 20.05.2003, specifically mentioned that they had no objection if the subject land is allotted to the petitioner and also expressed the view that in case the land is not allotted to the petitioner, she would suffer huge, irreparable loss and injury. By an order dated 13.07.2005, the application made by the petitioner came to be rejected and the Mamlatdar, Ranavav was directed to initiate proceedings under section 61 of the Code for removing the encroachment made over the subject land by the petitioner. The petitioner carried the matter in revision before the State Government in Revision Application No.JMN/PRB/21/2005. By an order dated 14.03.2006, the revision came to be rejected. Against the said order, the petitioner presented a writ petition before this court, being Special Civil Application No.10222 of 2006. By an order dated 06.07.2006, the petition came to be disposed of with a direction to the petitioner to file an undertaking before this court that she would vacate the entire property on which she had encroached on or before 30.11.2006 and granted liberty to the petitioner to move a fresh application to the District Collector for allotment of the land, provided she had complied with the undertaking of vacating the property. After complying with the directions issued by this court, the petitioner filed a declaration on 21.10.2006 pursuant to which, the Circle Officer, Ranavav made panchnama on 01.01.2007 and 21.02.2007. The possession of the subject land was thereafter handed over to the Talati-cum-Mantri, Kandorana. After following the aforesaid procedure, the petitioner once again made an application to the District Collector, Porbandar on 22.03.2007 for grant of the subject land to the petitioner. By an order dated 31.03.2008, the Collector rejected the application of the petitioner. Against the said order, the petitioner went in revision before the State Government in Revision Application No. JMN/PRB/31/2008. By the impugned order dated 03/14.12.2011, the revisional authority rejected the revision application and confirmed the order passed by the Collector, which has given rise to the present petition.
Mr. Vimal Purohit, learned counsel for the petitioners invited the attention of the court to the impugned orders as well as the order passed by the Collector, to submit that the revisional authority had erred in arriving at a finding that since the land is near the National Highway, the same cannot be granted. It was submitted that the lands from the very same revenue survey number had earlier been allotted to identically situated persons and hence, the authorities cannot discriminate against the petitioners in the matter of allotment. It was further submitted that the criteria of valuable land, as alleged, cannot be a ground while deciding the application for grant of land. It was further submitted that the respondent authority while rejecting the revision application, has erred in arriving at a finding that the subject land is a gauchar land, whereas in fact, the said land is gamtal land. It was contended that both the authorities have failed to consider the vital aspect that the National Highways Authority has also granted N.O.C. in favour of the petitioners. The subject land is situated two kilometres away from the village/gamtal and therefore, the same is not of the nature that can be used as a gamtal land even in future. It was urged that both the authorities have failed to consider the aspect that the land which is sought to be allotted is adjacent to the land granted on lease for quarry purpose to the petitioners and therefore, the petitioners had sought for the said land admeasuring 900 square metres for the purpose of storage of agricultural tools, cattle fodders etc. It was argued that this court while disposing of the earlier petition filed by the petitioners, had directed the respondent authority to consider the application made by the petitioners in the light of the prevalent policy of the Government and that while rejecting the application, neither of the authorities had made reference to any policy of the Government which prohibits the grant of such land in favour of the petitioner. It was, accordingly, urged that the impugned orders passed by the revisional authority as well as by the Collector suffer from various infirmities which render them unsustainable.
This court has considered the submissions advanced by the learned counsel for the petitioners and has perused the record of the case as available before the court.
A perusal of the order dated 06.07.2006 made by this court in the earlier writ petitions filed by the petitioners reveals that the court had directed that after verifying that the petitioners have vacated the land/property over which encroachment was made, the application of the concerned petitioner shall be considered by the District Collector for allotment of land as per the prevailing policy of the Government at the relevant point of time when the application is to be considered. It was further observed that the Collector shall decide the matter afresh independently without being influenced by his earlier order. Pursuant to the aforesaid order, the petitioners made applications dated 22nd March, 2007 to the District Collector for grant of the adjoining land admeasuring 900 square metres from revenue survey No.309 paiki of Kandorana village. The Collector, by the impugned orders dated 31.03.2008, has rejected the said application after calling for the report of the Mamlatdar, Ranavav and the Deputy Collector, Porbandar, on the following grounds :
The subject lands are adjoining to the lands given on lease.
The subject lands are situated near the Porbandar Rajkot National Highway and are valuable lands.
The subject lands are vested in the Panchayat and are gauchar lands.
The subject lands, in future, can be used as gamtal lands.
In view of the aforesaid facts, the Collector was of the view that the application for allotting such lands for residential purposes cannot be accepted.
The revisional authority, by the impugned order dated 14.12.2011, has concurred with the findings recorded by the Collector by observing that the lands for which request for allotment has been made for residential purposes, is situated next to the lands leased to the petitioners; the petitioners have removed the encroachment from the subject land. After the illegal encroachment on Government lands is removed and the lands are reserved for gamtal etc., there is a provision for disposing of such lands by way of public auction. The Collector has observed that the subject lands can, in future, be used as gamtal lands and that the subject lands are vested in the Panchayat and are gauchar lands and that the same being near the National Highway, are valuable lands, has rejected the application. The revisional authority was of the view that the Collector has passed the order on the basis of the reports given by the lower authorities as regards the existing position of the subject lands and as such, there is no warrant for intervention. It is for the aforesaid reasons that the revisional authority has rejected the revision applications made by the petitioners.
From the facts noted hereinabove, it is apparent that the petitioners had earlier encroached upon the lands adjoining the lands which were leased to them by the Government. Subsequently, they had sought for regularization of the said lands and later on, pursuant to orders passed by this court, they had vacated the said lands and thereafter, made applications for allotment of 900 square metres of land each out of the land bearing revenue survey No.309 paiki.
From the concurrent findings of fact recorded by the Collector as well as the revisional authority, it appears that the subject lands are situated near the National Highway and are valuable lands. Moreover, the lands in question are gauchar lands, which are vested in the Village Panchayat. According to the learned advocate for the petitioners, based upon certain revenue entries which the petitioners have placed on record, the subject land is not actually gauchar land, but is gamtal land. From the impugned orders, it appears that the revenue authorities, after examining the record of the case, have submitted a report to the effect that the subject lands are gauchar lands which are vested in the village panchayat. Assuming for the sake of argument that the subject lands are not gauchar lands, but are gamtal lands, even then, as noted by the Collector, the lands are to be used in future as gamtal lands.
It is settled legal position that insofar as the allotment of Government lands is concerned, no one can claim the same as a matter of right. If the subject lands are situated near the National Highway and are valuable lands, and in future, are likely to be used as gamtal lands, as rightly observed by the revisional authority, such lands are required to be disposed of by way of public auction and cannot be allotted at the instance of parties who had earlier encroached upon such lands.
For the foregoing reasons, this court does not find any infirmity in the impugned orders passed by the revisional authority so as to warrant interference. The petitions being devoid of merit, are accordingly, summarily dismissed.
(HARSHA DEVANI, J.) parmar* Page 8 of 8