Gujarat High Court
Anil vs State on 30 July, 2007
Author: M.R. Shah
Bench: M.R. Shah
SCA/5055/2009 17/ 17 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5055 of 2009
WITH
CIVIL
APPLICATION NO. 6307 OF 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
======================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
======================================
ANIL
GOVINDBHAI CHUDASAMA - Petitioner(s)
Versus
STATE
OF GUJARAT & 5 - Respondent(s)
======================================
Appearance :
MR
AJ YAGNIK for Petitioner(s) : 1,
Mr. Tushar Mehta. Addl. Advocate
General with Shri MR Mengdey, Assistant GOVERNMENT PLEADER for
Respondent(s) : 1 6.
MR.
Amit Panchal appearing as Amicus
Curiae
======================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 8 /9/2010
CAV
JUDGMENT
1. By way of this petition under Article 226 of the Constitution of India, the petitioner non Maldhari has prayed for an appropriate writ, direction and order restraining the respondents from preventing, prohibiting or obstructing the petitioner from doing any agricultural activity over the petitioner land and also to restrain the respondents from preventing the petitioner to construct house for petitioner and cattles on the said farm on the land of the petitioner.
2. It is the case on behalf of the petitioner that the land in question admeasuring 3 hectare of land was allotted by the Revenue Department, State of Gujarat to one Rabari Raja Amara in the year 1982. That at the relevant time, the land was treated as new tenure land i.e. land cannot be transferred without prior permission of the Revenue Department. It is the case on behalf of the petitioner that thereafter the heirs of Rabari Raja Amara applied for permission to convert the land from new tenure to old tenure by paying necessary premium under Section 43 of the Tenancy Act in the year 1998 and the Revenue Authority passed an order to that effect on 5.5.1998. It is the case on behalf of the petitioner that necessary entry was also mutated in the revenue record. That thereafter, the heirs of Rabari Raja Amara sold the said land to one Govindbhai Malabhai Chudasama by a registered deed and thereafter the said land was purchased by one Balubhai Sidibhai Chudasama. That thereafter, the said land has been purchased by the petitioner by registered document on dated 30.7.2007. It is submitted that the necessary entry is also made in the revenue record. That as the respondents were obstructing the petitioner from carrying and doing the agricultural activity on the said land and restraining the petitioner from putting up any construction of houses for the petitioner and cattle on the said farm, the petitioner made representation to the respondent no.2 on 12/2/2009 and to that Deputy Conservator of Forest, Gir, Junagadh communicated to the petitioner vide communication dated 16.4.2009 that the land in question was given/ allotted to Maldharies who were residing in the said forest for their rehabilitation and instead of that said Maldharies are selling the said land and again start residing in Gir area and that such a transfer is absolutely illegal and, therefore, action / proceedings to set aside such sale / transaction are under contemplation and during such an action is taken as the has no right to continue on the land in question as the land in question is in the Gir Sanctuary i.e. reserved forest and, therefore, petitioner was directed not to use the said land and not to cultivate the land in question. Hence, the petitioner has preferred present Special Civil Application under Article 226 of the Constitution of India for the aforesaid relief.
3. Shri Yagnik, learned advocate for the petitioner has vehemently submitted that the action of the respondents in not permitting the petitioner do to the agricultural activities and not permitting the petitioner to put up any construction of houses on the land in question is absolutely illegal. It is submitted that the petitioner has purchased the land in question from the erstwhile land owner who got the land converted from new tenure land to old tenure land and, therefore, the petitioner has become the owner pursuant to the registered sale deed and, therefore, petitioner cannot be restrained from using the said land as he is an owner of the land in question. It is further submitted that initially the land in question was a restricted new tenure land however the original allottee / heirs of the original allottee submitted the application to remove such restriction by making application to the revenue authority and the revenue authority removed the restriction and converted the land from new tenure to old tenure and as there were no restriction thereafter the original allottee sold the land, which ultimately came to be purchased by the petitioner. It is further submitted that as such the land in question is not in reserved forest/ Gir Sanctuary.
4. Shri Yagnik, learned advocate for the petitioner has vehemently submitted that as such in the vicinity of land in question approximately 292 plots are transferred by Maldharies in favour of Govindbhai Malabhai Chudasama and person like the petitioner who are all non Maldharies by sale deed or agreement to sell and no steps are taken against them and only the petitioner is restrained. Therefore, it is submitted that the action of the respondent is discriminatory and violative or Articles 14 of the Constitution of India. Therefore, it is requested to allow the present Special Civil Application and grant the relief as prayed for.
5. Petition is opposed by Shri Mengdey, learned AGP on behalf of the respondents. Shri Tushar Mehta, learned Additional Advocate General has appeared with Shri Mengdey, learned AGP. Affidavit in reply is filed on behalf of the respondent affirmed by the Deputy Conservator Forests, Gir (West) Division, Junagadh. It is stated in the said reply that petitioner is not carrying legitimate agricultural activity on the land of Survey No.20 paiki in Najapur-Chatariya Village of Mendarda Taluka of Junagadh District. It is submitted that the land in question was allotted to one Raja Amra, residing at Raydi ness of Gir Sanctuary in the year 1982 for resettlement out of the Gir Sanctuary and National Park. That the said Maldhari sold the land to Govindbhai Melabhai Chudasama in 1998 who in turn sold the land to Balubhai Sidibhai Chudasama who sold the land to the petitioner in the year 2006. It is submitted that Maldhari instead of leaving the Gir Sanctuary continued to stay inside and did not move out of Gir Sanctuary. It is submitted that in fact, it was a breach of conditions no.2 of office order dated 15.12.1982 and therefore, the allotment of the said land to the Maldhari Mr. Raja Amra become null and void. It is submitted that as a result of the transaction entered by the parties thereafter on the said land also becomes null and void. It is submitted that acceptance of the right of the petitioner over the land at the same time when the decedents of the said Maldhari continues to stay in the Gangajaliya ness of Gir Sanctuary is a loss to the Government and any proceeds received by the Maldhari on the sale of the said land is a undue and illegal gain, based on cheating and breach of trust between the Maldhari and the Government.
6. It is further submitted that the land in question is in the reserved forests as per the Notification of the Government of Gujarat dated 15.4.1971 and Wildlife Sanctuary dated 18.9.1965. It is further submitted that as the right of the Maldhari over the land given for resettlement lapses since he is not resettled out of the Gir Sanctuary, and no person can be given ownership of the land when the said Maldhari continues to stay in the sanctuary limits, efforts by the petitioner to enter the land and do cultivation is an act of violation of Section 26 of the Indian Forest Act, 1927 and Sections 27 & 29 of the Wildlife Protection Act, 1972. It is further submitted that the action of the petitioner of entering the said land and starting cleaning operations and cultivation therefore, being illegal, an offence no. 1/2009-10, Devaliya Range dated 1.5.2009 was registered which is absolutely just, proper and legal.
It is further submitted that the said land in question has not been tilled so far and no crop has been taken. It is submitted that the land in question is very much part of the Lion Habitat of the Gir Sanctuary and surrounded by dense forests. It is submitted that the custody and possession of the land is with the Forest Department and the claim of the petitioner that the land is in his occupation is not true.
7. It is further submitted that the respondents are duty bound to enforce the provision of Indian Forest Act and Wildlife Protection Act and it is bounded duty of the respondent to protect the reserve forest and Wildlife Sanctuary. It is submitted on behalf of the respondent that on number of occasions the petitioner was made to understand the legality of the issue in person and despite the same and instead taking steps against the erstwhile owner they have tried to cause damages to Wildlife Sanctuary. It is further submitted that as the petitioner is non Maldhari and the land in question is allotted to Maldhari for resettlement and consequently restriction was removed on condition that the allotees to leave the Gir Sanctuary and it has been found that original allottee has not left Gir Sanctuary, petitioner has no right to occupy and continue in possession of the land in question. It is submitted that as such the transaction with respect to the land in question are absolutely illegal, nullity and non est and on the basis of such transaction / transfer, petitioner cannot be permitted to occupy and cultivate the land which the petitioner is otherwise not entitled to under the provisions of the Indian Forest Act and Wildlife Protection Act. It is further submitted that even to cultivate the land and carry out Agriculture Activity in Reserve Forest Area is not permissible as it is Non-Forest Activity. Therefore, it is requested to dismiss the present petition.
8. Looking to the allegation by the petitioner that with respect to approximately 292 plots and more the plots which were originally allotted to Maldhari for their resettlement have been sold either by sale deed and/ or transferred by agreement to sell and the same are occupied by non Maldharies and non triables and still no action has been taken and the permissions have been granted by the revenue department to remove the restriction and convert the land / plots from new tenure to old tenure by the revenue authority and this Court was of the prima facie opinion that no such transfer can be permitted and that too in favour of non Maldharis and non tribals in the reserve forest and the Wildlife Sanctuary, this Court appointed Shri Amit Panchal, learned Advocate as Amicus Curiae to assist the Court and to visit the Sanctuary and to submit the report and Shri Panchal, learned Advocate has made the visit of the Gir Sanctuary which comprised for protection of forest and reserve forest and in his report he has stated as under:
The Government of Gujarat through its Agriculture and Lands Department, issued Notification dated 26.09.1961 under section 4 and 17 of the Indian Forest Act, 1927 declaring 1251.35 sq. kms. of forest area of Gir gol in Junagadh District as Forests.
By Notification dated 18.09.1965, the Government of Gujarat through its Agriculture and Co-operation Department, declared 1265.01 sq. kms. of forest area as Wild Life Sanctuary, under the Gujarat Wild Animals and Wild Birds Protection Act, 1963.
Government Resolution dated 17.01.1972 came to be issued by the Government of Gujarat through its Agriculture, Forests and Cooperation Department in respect of the Scheme for Nature Conservancy including Conservation of Wildlife (Scheme No.187). The said Government Resolution refers to the recommendation of the Expert Committee of the Indian Board for Wildlife that the lion should be preserved in its natural habitat in Gir, and the Gir Sanctuary exhibits overwhelming evidence of progressive and accelerated degeneration of the indigenous system. It is further indicated therein, that as a result of excessive grazing by domestic livestock in the Sanctuary area, wild herbivores, which constitute the natural food of the lion have become rare. The human disturbances, have further aggravated the precariousness of the lion s habitat. It is further mentioned that if adequate measures are not taken immediately, this unique species will probably be extinct before the close of this century. The executive committee of the Indian Board for Wildlife has recommended that human disturbances and ecological imbalance in National Parks and Sanctuaries should be minimized and that grazing should be excluded form national Parks and controlled in the Sanctuaries.
The aforesaid recommendations have been accepted by the Government of Gujarat and it was pleased to direct that the Gir Sanctuary area should be closed to grazing by domestic livestock from outside and the Maldharis residing in the Sanctuary area should be shifted outside the Sanctuary alongwith their livestock and resettled on its peripheral areas. It is further indicated that the Government wastelands to the extent of about 1950 hectares kept in reserve for their settlement and about 3200 hectares of land to be spared from forest area should be utilized for the settlement of Maldharis and for assignment as common grazing lands for their livestock, as well as for the livestock those villages and forest settlement whose grazing rights may be recognized. The Government Resolution further suggests that for the improvement of the ecosystem in Gir with a view to developing it into a National Park it is considered necessary that the Sanctuary area, after deleting the area for the Maldharis and assignment of grazing grounds, should be fenced that special barricades should be erected across water courses and check post barriers across public roads should be provided at important entry points on the periphery of the Sanctuary. It is indicated that live hedge should be provided on both sides of the public roads passing though the Sanctuary area and that alternative food should be provided to the lions until wild herbivores multiply in sufficient numbers to meet fully the food requirements of the lions. It was for the aforesaid purpose that the Government was accordingly pleased to sanction a Scheme for development of Gir Sanctuary at a total estimated cost of 45.07 lacs which included shifting of 845 families of Maldharis from the Sanctuary and there settlement of the periphery at Rs. 1000 per family (Rs. 250 for free timber for construction of hut and Rs. 750 for transport of all goods and labour charges for dismantling of huts and re erection at the site of resettlement). The aforesaid sanction was valid for 5 years subject to the conditions as indicated therein.
The Government of Gujarat through its Agriculture and Co-operation Department, issued Government Resolution dated 02.03.1972 in pursuance of the recommendation of the Executive committee for the Indian Board for Wildlife after the Government of India had appointed an Expert Committee on Wildlife Conservation. The report of the Expert Committee was accepted by Government and certain decisions were taken as indicated in the said Government Resolution. The Government of Gujarat through its Agriculture and Co-operation Department, issued another Government Resolution dated 02.03.1972 referring to the decision taken by the Government to develop the Gir Lion Sanctuary into a National Park. By the said Government Resolution the Government of Gujarat laid down guidelines for the guidance of the Forest Department in the formulation of proposals, affecting or relating to the Gir Lion Sanctuary.
The Government of Gujarat, after the issuance of Notification at Annexure A, issued Notification dated 06.11.1974 under section 20 of the Indian Forest Act, 1927, declaring 1230.44 sq. kms. forest area of Gir gol in Junagadh District, as Reserved Forests.
The Government of Gujarat declared its intention to notify 332.32 hectares in survey no.20 of Najapur (Chatariya) village as Reserved Forests under the section 4 of the Indian Forest Act, 1927 by Notification No. FLD/ 1661/ 24654 A, dated 24.07.1961.
The Government of Gujarat thereafter by Notification AKH-125/FLD/1670-62574 P, dated 15.04.1971 declared 151.96 hectares of the above area of 332.32 hectares in survey no.20 of Najapur (Chatariya) village mentioned in Annexure G, as Reserve Forests under Section 20 of the Indian Forest Act, 1927.
In pursuance of Annexure H, the Government of Gujarat declared the remaining area of 180.36 hectares of Najapur (Chatariya) of survey no 20 of which was deleted from the section 4 for declaration of Reserved Forests, was declared as Protected Forest Act, 1927, by Notification AKH 8-75-FLD-1375-60002 P, dated 08.01.1975.
Forest areas in Amreli Districts were also included in the Gir Sanctuary and were separately declared as Reserved Forests. As of the current position a total of 1412.13 sq. kms. of Forest area in the Districts of Junagadh and Amreli has been declared as Sanctuary.
The Government of Gujarat through its Agriculture and Co-operation Department, issued Notification dated 17.08.1977, in exercise of the powers conferred by Section 30(a) and 30(c) of the Indian Forest Act, 1927, and declared any trees and class of trees in protected forests and the trees specified in the Schedule appended thereto as reserved and prohibited the quarrying of stone, or the burning of lime or charcoal, or the collection or subjection to any manufacturing process, or removal of any forest produce in any such forest and the breaking up or clearing for cultivation, for building, for herding cattle or for any other purpose with effect from 17.08.1977 under Section 29 of the Indian Forest Act, 1927. It is however, surprising to note that despite the aforesaid factual and legal position as is evident from the perusal of the aforesaid Government Resolutions and Notification, which have been issued under the provisions of the Indian Forest Act, 1927, and which are clearly within the knowledge of the authority, the above mentioned Reserved Forests of Survey no. 20 of Najapur (Chatariya) village has not been entered in the revenue records as Forests by the revenue authorities. It appears that it is on a misbelief that the lands situated in survey no. 20 of Najapur (Chatariya) village are revenue lands and not forests, though they have as such always been declared to be so by the aforesaid Government Resolutions by the Government of Gujarat that a demand is sought to be raised to permit non-forest activities in survey no.20, which is admittedly part of the Gir Sanctuary and Reserved Forests .
After submitting his report he has concluded his report with following conclusion and suggestions:
The lands situate in survey no. 20 of Najapur (Chatariya) village appear to be part of Sanctuary and Reserved Forests and are not revenue lands. The said lands have not been corrected to be forest lands by the revenue authorities despite Government Resolutions being unequivocally clear and unambiguous, leaving no room for doubt that they are part of Sanctuary and Forests. It also appears that the forest department has brought the said fact to the notice of the revenue authorities, despite which necessary corrections in the revenue record have not been made. It would be in accordance with law and in public interest as well as with a view to protect and preserve the Wild Life in the Wild Life Sanctuary, and the Reserved Forests that immediate remedial steps are taken by the revenue authorities to correct the revenue record so as to ensure compliance of the provisions of the Forest Act, 1927, Wild Life (Protection) Act, 1972 and the Forest (Conservation) Act, 1980 and thereby fulfill the object and purpose of issuance of the Government Resolutions referred to hereinabove.
The use of the lands in question in respect of the plots mentioned in sr. nos. 1 to 5 could be termed as use for non-forest purposes and cannot be permitted in the Sanctuary and Reserved Forests, in view of provisions of Forest Act, 1927, Wild Life (Protection) Act, 1972 and the Forest (Conservation) Act, 1980 and the orders passed by the Honourable Supreme Court of India in the case of T. N. Godavarman Thirumulkpad Vs. Union of India & others - Writ Petitions (Civil) No. 202 of 1995. With regard to sr. nos. 6 to 11 the use of the plots in future also have to be restrained in view of the above.
An act of error or omission on the part of the authority, would not give right to the plot holder/owner to do something, which law does not permit and a mistake committed would not and cannot give a right to any person to perpetuate the illegality.
In so far as the land in question in cases of sr. nos. 4 and 5 are concerned, the plot holders being Maldharis, as per the Government Resolutions were entitled to be resettled. The sid Maldharis have been resettled, but due to the inaction on the part of the revenue authorities, would not have to be settled in an area which is not part of the Sanctuary or forest and where non-forest activity would be permissible in accordance with law. The State Government would be required to be directed to allot suitable parcels of land, as may be deemed fit and proper, keeping in mind the object and purpose of the resettlement policy, and the fact that the said Maldharis have not gone back to the place from where they have been resettled in survey no. 20 of Najapur (Chatariya) village by the authorities, for reasons best known to them.
The revenue authorities be directed to take immediate remedial steps to correct the government record by making appropriate mutation entries on the basis of the material available with the forest department and such other material which may be made available, and as may be required by the revenue department within such period of time as may be deemed fit and proper by this Honourable Court, with a view to prevent any further damage to the Sanctuary and forest area and to protect and preserve the ecology and environment. The forest department would be required to be directed to take possession of the plots in question and to ensure that afforestation is done thereupon and adequate number of trees are planted on the said lands of survey no.20 of Najapur (Chatariya) village.
The forest department in Junagadh and Amreli District appears to have done a commendable job in maintaining the Gir Sanctuary and National Park and also appears to be making an endeavour by taking effective steps to protect and preserve the environment in and around the Sanctuary. The cooperation and assistance extended by the Collector, Junagadh and the Deputy Conservator of Forests, Gir, (West) Division, Junagadh, during the visit is highly appreciated .
9. Heard the learned advocates for the respective parties at length. The land situated at Survey No.20 paiki in Najapur-Chatariya Village of Mendarda Taluka of Junagadh District appears to be Wild Life Sanctuary reserve forest and are not revenue land. It is not in dispute that the plot in question was allotted to one Maldhari viz. Rabari Raja Amara for his resettlement and rehabilitation and was allotted as a new tenure land i.e. restricted land, the land cannot be transferred without prior permission of the Revenue Department. It appears that thereafter heirs of Rabari Raja Amara applied for permission to convert the land from new tenure to old tenure and the revenue authority without properly appreciating / understanding the restriction and illegally misuse of the same, granted the permission and converted the said land from new tenure to old tenure. Thereafter taking disadvantage of order dated 5.5.1998 converting the said land from new tenure to old tenure, the heirs of the original allottee / Maldhari transferred the said plot which has been ultimately purchased by the petitioner who is admittedly non Maldhari and non triable. It is to be noted that the land in question is included in the reserve forest and is part of the Wild Life Gir Sanctuary. Therefore, when the land in question was allotted to the original allottee -Maldhari for rehabilitation and resettlement, the same could not have been permitted to be transferred by the revenue authority. Even otherwise, under the provisions of the Indian Forest Act and Wildlife Protection Act nobody can be permitted to purchase / occupy the land which is forming part of reserve forest and Wildlife Sanctuary. Under the circumstances, the transfer/ transaction in favour of the petitioner and other persons by the original allottee and even the order passed by the revenue authority converting the land from new tenure to old tenure is absolutely illegal, non est and nullity. Under the circumstances, the petitioner has no right to occupy / possess the land in question and any agricultural activity (Non Forest) and putting up the construction of the house of the petitioner on the land in question is absolutely illegal and against the provisions of Indian Forest Act and Wildlife Protection Act, which cannot be continued / permitted.
10. It is to be noted that vide resolution dated 17.1.1971 the State Government, Agriculture, Forest and Cooperation Department has passed the resolution confirming the scheme or nature conservancy including the conservation of Wildlife (scheme no. 187)- Development of Gir Sanctuary accepting the recommendation of the Expert Committee of the Indian Board for Wildlife. It had been considered by the Expert Committee and the State Government that as a result of excessive grazing by domestic livestock in the Sanctuary area, wild herbivores, which constitute the natural food of the lion have become rare and therefore, Executive Committee of the Indian Board for Wildlife has recommended that human disturbances and ecological imbalance in National Parks and Sanctuaries should be minimized and that grazing should be excluded form national Parks and controlled in the Sanctuaries . The State Government accepted the said recommendation and, therefore, the State Government directed that Gir Sanctuary area should be closed to grazing by domestic livestock from outside and the Maldharis residing in the Sanctuary area should be shifted outside the Sanctuary alongwith their livestock and resettled on its peripheral areas and it was also decided that the Government waste lands to the extent of about 1950 hectares be kept reserve for their settlement. It is to be noted that in light of the above resolution and the decision the plots were to be allotted to the Maldharis for their resettlement and Shri Raja Amara Rabari was allotted the plot in question for rehabilitation / resettlement. It is reported and as per report as such there were 570 plots allotted to Maldhari which is outside the Gir Sanctuary however so far as the land occupied by the petitioner is concerned, it is absolutely within the Wildlife Sanctuary and it is reserved forest. Therefore, the petitioner cannot be permitted to put up any construction. If the petitioner is permitted to do / carry on any agricultural activity (Non Forest) and / or is permitted to put up any construction on the land in question, the same would be frustrating/ affecting the purpose and object of the Wildlife Sanctuary and against the provision of the Indian Forest Act and Wildlife Protection Act and which is likely to affect Sanctuary, which cannot be permitted. Therefore, the prayer of the petitioner, cannot be accepted. It is to be noted that as mentioned in the communication dated 16.4.2009 as mentioned by the Deputy Conservator Forest Gir (West) Division, Junagadh proceeding to set aside the transactions by the Maldharies who were allotted plots for the resettlement and non Maldharies and/ or other persons are in contemplation and during such proceedings are initiated, the petitioner cannot be permitted to do agricultural activity and put up the construction of house on the land in question.
11. Under the circumstances,no relief can be granted to the petitioner as prayed for. Under the circumstances, present petition deserves to be dismissed and is accordingly dismissed. Rule discharged. No cost.
Before parting with the present order the allegations on behalf of the petitioner that as such in the vicinity of the land in question approximately 292 plots are transferred by the Maldharis in favour of non-Maldharis contrary to their original grant and same are transferred by executing sale deed etc. deserve serious consideration by the appropriate Higher Authority. Under the circumstances, while dismissing the present Special Civil Application Chief Conservator Forest, Junagadh, Collector, Junagadh and Deputy Conservator of Forest, Gir (West) Devision, Junagadh are hereby directed to look into the transaction / transfer with respect to plots in the Gir Sanctuary which were initially allotted to Maldhari for their rehabilitation which are alleged to have been transferred to Non-Maldhari and hold necessary inquiry with respect to the same and take appropriate steps in accordance with law after following due procedure, so that purpose for which the lands/plots came to be allotted to the Maldharis for rehabilitation is not frustrated and the land in the Gir Sanctuary is not purchased by Non-Maldhari and/ or other persons is not used for Non-Forest Activity de-hors the provision of Indian Forest and Wildlife Protection Act and appropriate steps will be taken within a period of six months. In view of the order passed in Special Civil Application, no order in Civil Application and is accordingly disposed of.
(M.R.SHAH, J.) kaushik