Gujarat High Court
Vasna-Rathod Gram Panchayat vs State Of Gujarat on 15 July, 2022
Author: A. P. Thaker
Bench: A. P. Thaker
C/SCA/11206/1998 JUDGMENT DATED: 15/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11206 of 1998
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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VASNA-RATHOD GRAM PANCHAYAT & 5 other(s)
Versus
STATE OF GUJARAT & 4 other(s)
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Appearance:
MR KETAN D SHAH(1356) for the Petitioner(s) No. 1,2,3,4,5,6
MS. MOXA THAKKAR, AGP for the Respondent(s) No. 1,2,3,4
MR ANUJ K TRIVEDI(6251) for the Respondent(s) No. 5
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 15/07/2022
ORAL JUDGMENT
1. The petition has been preferred by the petitioner under Article 226 of the Constitution of India for the following reliefs:
(a) issue a writ of mandamus or a writ in the nature Page 1 of 24 Downloaded on : Fri Jul 15 21:46:35 IST 2022 C/SCA/11206/1998 JUDGMENT DATED: 15/07/2022 of mandamus or any other appropriate writ, order or direction may kindly be granted quashing and setting aside the impugned order at Annexure -A;
(b) pending admission hearing and final disposal of thei petition an interim injunction may kindly be granted staying further operation and implementation of the impugned order at Annexure-A and restraining the respondents, their officers, agents and servants from putting up any construction on the land situated between the petitioner no.1 and petitioner no.2 Panchayats (either on Survey No. 330 or land having no survey numbers);
(c) grant such other and further reliefs as the
Hon'ble Court may deem fit; and
(d) allow this petition with costs.
2. The brief facts giving rise to the present petition are as under:
2.1 The land situated between two villages namely Vatva and Vasna-Rathod can be summarised into two parts - one part consists of survey No. 330 falling within the limits of Vatva Gram Panchayat and another part is not having any survey numbers, which is alleged to be used a gauchar land for grazing of cattles belonging to the residents of both the Panchayats, came to be allotted by the State Government Page 2 of 24 Downloaded on : Fri Jul 15 21:46:35 IST 2022 C/SCA/11206/1998 JUDGMENT DATED: 15/07/2022 to respondent No.5 vide the impugned order. It is the say of the petitioner that the land in question is gauchar land and it is mutated in the name of Panchayats. It is contended that the State Government has no authority to allot the same to the private respondent. It is also contended that assuming that the State Government has the power to resume the land allotted to the Panchayat to be used as gauchar land, then also it is incumbent upon the State Government to follow the procedure for resumption of land under Section 108 of the land Revenue Code. It is contended that without following legal procedure, the State Government has sold the land belonging to the Panchayats to Respondent No.5 Company. It is contended that the impugned order of the State Government is without jurisdiction. According to the petitioner, the land in question is being used as gauchar land and majority of the residents of both the Villages depend upon animal husbandry, as the source of their livelihood is animal husbandry and for their survival, adequate gauchar land is inevitable. It is contended that even at present, there is no adequate gauchar land available for the cattle of residents of both the villages.
Page 3 of 24 Downloaded on : Fri Jul 15 21:46:35 IST 2022 C/SCA/11206/1998 JUDGMENT DATED: 15/07/2022 2.2 It is contended that the impugned order was passed in May, 1997 and the respondent No.5 has started fencing work and no other construction work has been completed. It has prayed to quash and set aside the impugned order of granting the land in question to respondent No.5.
3. Affidavit-in-reply on behalf of respondent No.2 has been filed wherein it is categorically stated that the land in question was never allotted to the Panchayat as gauchar land and it belongs to the State Government and it is Government waste land. It is contended that at the relevant time, due to mistake on the part of the Taluka-cum-Mantri, for some point of time, it was shown as in occupation of Vasna- Vatva villages. It is contended that in reality, it is government waste land and no entry in the revenue record was ever made previously as gauchar land. It is contended that there are sufficient land available in both the villages for gauchar land with various Survey Numbers. It is contended that as it is a Government waste land, the State Government has every authority to pass appropriate order, allotting the land. It is prayed to dismiss the petition. Page 4 of 24 Downloaded on : Fri Jul 15 21:46:35 IST 2022 C/SCA/11206/1998 JUDGMENT DATED: 15/07/2022
4. Additional affidavit has also been filed by respondent No.4 wherein also it is contended that the land allotted to respondent No.5 is comprising of the land as part of the Survey No. 381 paiki mouje Vatva, Taluka Dehgam, admeasuring 16-71-40 and a land bearing Survey No.41 (old un-numbered unsurveyed land) of Mouje Vasna Rathod, Taluka Dehgam, admeasuring 28-28-60 out of total 28-74- 31 as per latest land records. It is also contended that the alloted land has been clubbed from the land bearing Survey No. 41 (old un-numbered unsurveyed land) of Mouje: Vasna Rathod admeasuring 28-28-60 which was never a gauchar land from its inception. It is also contended that the other part of the allotted land Block No. 381 Paiki (old Survey No.
330) admeasuring 16-71-40 of Mouje Vatva, Taluka Dehgam was also as per the revenue entry no. 208 dated 29.2.1956 mutated as " Sarkari BIn Kabjau Padtar" and thus, it is clear that both the parcels of land of villages Mouje: Vatva and Mouje: Vasna Rathod were never mutated and / or allotted as a gauchar Land for the said villages. It is also contended that therein that gauchar land for village Vatva is of Acre 107-29-00 Guntha and for village Vasna-Rathod is of Acre Page 5 of 24 Downloaded on : Fri Jul 15 21:46:35 IST 2022 C/SCA/11206/1998 JUDGMENT DATED: 15/07/2022 55-16-80 Guntha. Along with this affidavit, necessary documents reflecting the contention are also produced on record.
4.1 In addition to the aforesaid affidavit, further additional affidavit came to be filed by Mamlatdar, Dehgam wherein also the stand of the Government that land admeasuring about old Revenue Survey No. 330 was running in the name of Government since inception, has been reiterated.
5. Respondent No.5 has also filed its affidavit, contending that land in question was never a gauchar land and Government has allotted it to it as market value and possession was handed over to it and it has made fence thereof. It is also contended that the land was never gauchar land as alleged by the petitioner. However, it stated that as litigation is pending, it could not make any further construction.
6. It appears from the record that private petitioner No. 3 has filed various affidavits at various stages denying the stand of the Government that it is a Government waste land and it was never allotted to the Panchayats and was a gauchar land.
Page 6 of 24 Downloaded on : Fri Jul 15 21:46:35 IST 2022 C/SCA/11206/1998 JUDGMENT DATED: 15/07/2022
7. Heard Mr. K.D.Shah, learned advocate for the petitioner, Ms. Moxa Thakkar, learned AGP for the respondent Nos. 1 to 4 and Mr. Anuj Trivedi, learned advocate for the respondent No.5 at length. Perused the materials placed on record as well as decision cited at bar.
8. Mr. K.D. Shah, learned advocate for the petitioner has submitted same facts which are narrated in the Memo of Petition. He has, interalia, contended that initially the land of Village Kotadra was allotted to respondent No.5 which was a Government land but as there was agitation from the residents thereof, that order came to be cancelled and the land in question came to be allotted by the State Government to the respondent No.5 on the basis that it is un-numbered unsurveyed land. According to Mr. Shah, learned advocate for the petitioner, in reality it is a land of Survey No. 330 of Vatva village and it is a gauchar land. He has submitted that the authority has purposefully not referred to Survey No. 330 in the impugned order. He has, while referring to the copy of the revenue record, has submitted that as per the village Form No.7 /12, Survey Page 7 of 24 Downloaded on : Fri Jul 15 21:46:35 IST 2022 C/SCA/11206/1998 JUDGMENT DATED: 15/07/2022 No.330 is shown to be Government Charo Land, which means that it is a gauchar land. He has submitted that even while allotting 16 Acre of Survey No. 330 of Vatva Panchayat to one Army man, Vatva Panchayat has passed Resolution and on that basis, gauchar land was allotted to the said Army man. He has submitted that thus the nature of the land is clearly a gauchar land and Government cannot allot this land to private respondent. Mr. Shah, learned advocate has admitted that petitioner No.1 Vasna-Rathod Gram Panchayat has withdrawn their claim and have agreed to the order passed by the State Government granting the land in favour of respondent No.5.
8.1 Mr. Shah, learned advocate has also submitted that as per the Government Resolution, the gauchar land must be available with the Panchayat in consonance with the number of animals in the Panchayat. He has also submitted that the Government has allotted the land not for any public purpose but for the construction of factory by private respondent, which cannot be a public purpose. He has submitted that even according to possession receipt produced in the matter handing over the possession to Page 8 of 24 Downloaded on : Fri Jul 15 21:46:35 IST 2022 C/SCA/11206/1998 JUDGMENT DATED: 15/07/2022 respondent No.5, there is no such construction made over the land and the land is still in non-used condition. He has submitted that since it is a gauchar land, the Government cannot allot it to anybody else and has prayed to quash the impugned order of the State Government granting land to respondent No.5. He has relied upon the following decision in support of his submission:
1. Order of the Hon'ble Apex Court dated 6.9.2021 in case of Rameshbhai Virabhai Chaudhari v. The State of Gujarat & Ors, especially the following observation:
"It is trite to say that gauchar land can be used only for purpose for which it is permitted to be used. If there is a user contrary to the permissible user, whether by the State or by any third party, the same cannot go one. Rehabilitation of persons is really not required in the present case as only three persons are entitled to an alternative site as per rules. There is ofcourse some dispute whether the encroachers have made permanent structures or kuchha construction for keeping cattle but be that as it may, the user cannot be contrary to what is being permitted for gauchar land, which is a grazing land."
2. Judgment dated 1.3.2011 passed by Coordinate Bench in Special Civil Application No. 1300 of 2010 in case of Lalitbhai Amrutlal Patel & 38 v. State of Page 9 of 24 Downloaded on : Fri Jul 15 21:46:35 IST 2022 C/SCA/11206/1998 JUDGMENT DATED: 15/07/2022 Gujarat & 2, wherein Paras-5.4, 5.5. and 5.6 read as under:
[5.4] It appears that thereafter considering the aforesaid orders, Revenue Department of the State Government has issued the circular dated 30.12.1988 for preservation of the 'gauchar' land and it appears that as per the existing policy and norms prescribed by the State Government, standard acreage of grazing area is fixed at 40 acres per 100 heads of cattle. Thus, per 100 heads of cattle, 40 acres (16 hectares) of land is required to be assigned for 'gauchar' land and if the land is forest land, in that case, per 100 cattle, 20 acres (8 hectares) is required to be assigned as 'gauchar' land.
Even as per the circular dated 30.12.1988, as far as possible the aforesaid norms is required to be maintained and land to the aforesaid extent is required to be kept as 'gauchar' land and only in exceptional cases, the 'gauchar' land can be used for any other public purpose and in that case also, if there is any opposition by the local authority, the same should be avoided. Thus, by and large, as such the norms for assigning the 'gauchar' land is to be maintained. In the present case, as stated above, as such there are in all 3652 cattle in the village and considering the norms fixed by the State Government as such there is a requirement of 584 hectares of land for 'gauchar', however, against which at present there is only 9 hectares and 16 acres of land out of the land bearing survey No.100 remained as 'gauchar' land and out of which also further land is sought to be taken away and converted into 'gamtal' land may be for other public purpose. Thus, by taking away further land from the land bearing survey Page 10 of 24 Downloaded on : Fri Jul 15 21:46:35 IST 2022 C/SCA/11206/1998 JUDGMENT DATED: 15/07/2022 No.100 ('gauchar' land) the remaining 'gauchar' land would be much much below the required 'gauchar' land and the same shall not be in the interest of the village people and cattles in village. It appears that the Prant Officer has considered the request of diverting the 'gauchar' land to 'gamtal' for allotting the same to persons who are below poverty line and has in fact allotted the same by observing that in the nearby area, there is no other 'gamtal' land. However, while taking the aforesaid decision, it appears that Prant Officer has not taken into consideration whether by diverting the same land from the land bearing survey No.100 i.e. 'gauchar' land thereafter there will be sufficient land remained as a 'gauchar' land or not that too looking to the requirement and the number of cattle in the village. It appears to the Court that before taking such a decision the aforesaid aspect was also required to be considered by the Prant Officer and he was required to do same exercise on that and only thereafter he could have diverted the land to 'gamtal' land from the 'gauchar' land. Thus, the impugned decision of the Prant Officer to divert 20,000 sq.mtrs. From the land bearing survey No.100 ('gauchar' land) suffers from nonapplication of mind on the relevant aspect as stated herein above and the same cannot be sustained.
[5.5] Even otherwise, it cannot be disputed that the interest of the cattle is also required to be protected and borne in mind while reserving the 'gauchar' land and thereafter on diverting the land to 'gamtal'. If the cattle do not have sufficient land to graze where they will go for grazing. In fact considering the aforesaid aspect in mind as such the decision was taken as far as back in the year 1954 and the Government issued a resolution No.GR8- Page 11 of 24 Downloaded on : Fri Jul 15 21:46:35 IST 2022 C/SCA/11206/1998 JUDGMENT DATED: 15/07/2022 11053/56276877 dated 10.05.1954 providing for reservation of lands for grazing purpose, as reproduced above.
[5.6] Under the circumstances, the impugned decision of the Prant Officer, Gandhinagar dated 19.09.2009 diverting 20,000 sq.mtrs. of land out of the 'gauchar' land
- survey No.100 situated at village Padusama, Taluka Mansa, District Gandhinagar into 'gamtal' cannot be sustained and the same deserves to be quashed and set aside, as the same does not conform to the norms fixed by the State Government for reserving the 'gauchar' land. However, the same shall not preclude the State Government and/or appropriate authority from allotting the some other land to other persons who are below the poverty line and the said exercise shall also be completed at the earliest. However, the impugned order dated 19.09.2009 diverting the 'gauchar' land into 'gamtal' land cannot be sustained for the reasons stated above."
3. State of Jharkhand and Others v. Pakur Jagran Manch and Others, reported in (2011) 2 SCC 591, wherein Para-23, 24 and 25 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 illegaly 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 Page 12 of 24 Downloaded on : Fri Jul 15 21:46:35 IST 2022 C/SCA/11206/1998 JUDGMENT DATED: 15/07/2022 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. 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 re- classifying 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 Page 13 of 24 Downloaded on : Fri Jul 15 21:46:35 IST 2022 C/SCA/11206/1998 JUDGMENT DATED: 15/07/2022 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."
4. Judgment dated 25.7.2011 passed by Coordinate Bench of this Court in Special Civil Application No. 2102 of 2011, in case of Chaudhary Laxmanbhai Parthbhai v. State of Gujarat.
9. Per contra, learned AGP Ms. Moxa Thakkar for the State has vehemently submitted that petitioner No.1 has already passed Resolution in favour of granting of land to respondent No.5, which is at Page-261. She has submitted that even in that Resolution, it has been reflected that this is land un-numbered unsurveyed land. She has submitted that now the petitioner No.2 Vatva Gram Panchayat has no locus-standi as the land does not belong to this Panchayat. She has submitted that other petitioner Nos. 3 to 6 are concerned, they have no locus-standi as this is not a Public Page 14 of 24 Downloaded on : Fri Jul 15 21:46:35 IST 2022 C/SCA/11206/1998 JUDGMENT DATED: 15/07/2022 Interest Litigation. She has also vehemently submitted that from the very inception, the land is government waste land and it was never a gauchar land. According to her submission, as per the affidavit of the then Deputy Collector, for certain period there was a mistake committed by the Talati-cum-Mantri in making entry. According to her, as per the affidavit filed by Mamlatdar and Deputy Collector, in this matter, the land is a Government waste land, which was permitted to be treated as Chara land but it does not mean that it was a gauchar land. She has submitted that even in the copy of the Register showing the nature of the land is concerned, this land has been shown as State Government waste land. She has referred to Map at Page-179 and has submitted that the land in question was never a gauchar land, but, it was a Government waste land. According to her submission, in all the revenue records, it is a government land and, therefore, the State Government has every authority to allot it. She has submitted that the order passed by the authority granting the land to respondent No.5 is legal and valid. Regarding various decisions cited by learned advocate for the petitioner, she has submitted that the fact of those Page 15 of 24 Downloaded on : Fri Jul 15 21:46:35 IST 2022 C/SCA/11206/1998 JUDGMENT DATED: 15/07/2022 cases are different as in those cases, gauchar land were tired to be allotted whereas in the present case, it is government waste land and not gauchar land from the very inception. She has prayed to dismiss the petition.
10. Mr. Anuj Trivedi, learned advocate for the respondent No.5 has vehemently supported the submissions of learned AGP and has submitted that from very beginning, the land was mutated as government waste land and for some period, it was mistakenly shown as in occupation of Vatva village. He has also submitted that even as per Page-26, no gauchar land was given to the Panchayat and no order alloting the gauchar land to the Panchayat has been produced by the petitioner. He has also submitted that even as per Page- 132, the record of DILR , Survey No. 330 is shown as government waste land and not gauchar land. He has also submitted that the land has been allotted to respondent No.5 in the year 1997 and it has paid Rs. 5 Crore to the Government exchequer. He has submitted that the petitioner has no locus to challenge the action of the State Government, as land in question is a State Government land and not gauchar land. He has prayed to dismiss the petition. Page 16 of 24 Downloaded on : Fri Jul 15 21:46:35 IST 2022 C/SCA/11206/1998 JUDGMENT DATED: 15/07/2022 He has relied upon the following decisions:
1. Durga Das v. Collector and Others, reported in (1996) wherein it has been observed that Mutation entries do not confirm any title to the property. It is only entry for collection of the land revenue from the person in possession. The title to the property should be on the basis of the title they acquired to the land and not by mutation entries.
2. Dalip Singh and Others v. Sikh Gurdwara Prabhandak Committee and others, reported in (2003) 10 SCC 352, especially Para-12, wherein it is observed that entries in the revenue records by itself cannot prove the title to the property unless it is supported by other evidence.
3. Chaudhary Laxmanbhai Parthibhai and Ors. v. State of Gujarat and Ors, reported in 2012 (3) G.L.H 429, wherein it is observed in Paras-57 to 60 as under:
"57. Section 108 of the Panchayat Act, 1993 pertains to vesting of certain land in Panchayat by the Government and reads as follows :Page 17 of 24 Downloaded on : Fri Jul 15 21:46:35 IST 2022
C/SCA/11206/1998 JUDGMENT DATED: 15/07/2022 "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 Page 18 of 24 Downloaded on : Fri Jul 15 21:46:35 IST 2022 C/SCA/11206/1998 JUDGMENT DATED: 15/07/2022 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)."
58. 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.
59. In Panchayat Varga Shramjivi Samudaik Sahakari Khedut Co-op Society Ltd. and others v/s. 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 Page 19 of 24 Downloaded on : Fri Jul 15 21:46:35 IST 2022 C/SCA/11206/1998 JUDGMENT DATED: 15/07/2022 dealing with Section 96(4) of the Gujarat Panchayats Act, 1961, which is now Section 108(4) of the Gujarat Panchayats Act, 1993].
60. 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 appellantSociety. 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 Page 20 of 24 Downloaded on : Fri Jul 15 21:46:35 IST 2022 C/SCA/11206/1998 JUDGMENT DATED: 15/07/2022 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.
11. In rejoinder, learned advocate Mr. Shah for the petitioner has vehemently submitted that even in the order granting 16 Acre land to Army man in 1975, there is observation as to the land being a gauchar land of Survey No. 330 of Vatva village. He has submitted that there is no public purpose for granting land to respondent No.5.
12. Having considered the submissions made on behalf of both the sides coupled with the materials placed on record and the decisions at bar, it is pertinent to note that the matter has been initially filed by two Gram Panchayats and four private respondents, alleging that the land in question is of gauchar land. It reveals from the stand of the Government that from very beginning, the land in question is a government waste land and it was never gauchar land. The revenue record produced and relied upon by both the sides reveal that for certain period, the land of Survey No. 330 is shown as gauchar land but except those certain period, the Page 21 of 24 Downloaded on : Fri Jul 15 21:46:35 IST 2022 C/SCA/11206/1998 JUDGMENT DATED: 15/07/2022 entire record that as per Village Form No.6, entry No. 235 dated 5.1.1960, the land of Survey No. 330 was jointly declared to be of Vasna and Vatva villages but the gauchar land was not allotted to the villages. It is also reflected from the old village Form No.7 that the said Survey Number has been treated as a Government waste land upto 1962 and for the period from 1962 till 1966 it is shown as gauchar land. But, thereafter it is shown as government waste land. It also reflects that from the same land which is Government Charo, land has been allotted to Retired Army man. It is pertinent to note that the affidavit filed on behalf of State Government clearly suggests that there is a specific Survey Numbers which were declared as gauchar land for respective villages Vatva and Vasna-Rathod Gram Panchayats and this fact has not been denied by the affidavit of the Panchayat. It is also found from Page-87 that the land is un-numbered land. Now, as per the impugned order, the land has been allotted from unsurveyed unnumbered land to respondent No.5. It is also pertinent to note that at the relevant time, the land bearing Survey No. 330 was treated as un-surveyed land. It also reflects from the record that subsequent Page 22 of 24 Downloaded on : Fri Jul 15 21:46:35 IST 2022 C/SCA/11206/1998 JUDGMENT DATED: 15/07/2022 amalgamation Survey No. 330 is designated as Block No. 381 and as per the DILR records, it is government waste land.
13. It is also pertinent to note that as per Map at 179 the land has been shown as un-numbered land between Vasna- Rathod and Vatva Gram Panchayat villages. Thus, the stand taken by the State Government that it is a government waste land, is supported by the old revenue records. It also appears from the Resolution passed by the petitioner No.1 herein wherein also it has been reflected that the land alloted to the respondent No.5 is a land which was not surveyed at the relevant point of time. Thus, the version of the State Government regarding the land being unnumbered unsurveyed is also supported by petitioner No.1, vide its Resolution. Thus, when the land belongs to the State Government and it is waste land, the order of the authority cannot be said to be without jurisdiction. Further, as observed hereinabove, as per the affidavit of the revenue authorities, sufficient gauchar land is available to the Vatva Gram Panchayat and the nature of the land being Government waste land, the impugned order of the Court Page 23 of 24 Downloaded on : Fri Jul 15 21:46:35 IST 2022 C/SCA/11206/1998 JUDGMENT DATED: 15/07/2022 cannot be termed as of without jurisdiction. Therefore, considering the facts and circumstances of the case, the present petition is liable to be dismissed.
14. In view of the above, the present petition stands dismissed.
No order as to costs.
(DR. A. P. THAKER, J) SAJ GEORGE Page 24 of 24 Downloaded on : Fri Jul 15 21:46:35 IST 2022