Gujarat High Court
Ghanshyamsinh vs Aallooa on 27 December, 2011
Author: Jayant Patel
Bench: Jayant Patel
Gujarat High Court Case Information System
Print
SCR.A/2312/2009 41/ 41 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 2312 of 2009
With
CRIMINAL
MISC.APPLICATION No. 3065 of 2010
In
SPECIAL CRIMINAL APPLICATION No. 2312 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
HONOURABLE
MR.JUSTICE PARESH UPADHYAY
=========================================================
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 ?
=========================================================
GHANSHYAMSINH
GOVINDSINH VAGHELA - Applicant(s)
Versus
AALLOOA
NON TRADING ASSOCIATION & 13 - Respondent(s)
=========================================================
Appearance
:
MR
KANUBHAI I PATEL
for
Applicant(s) : 1,[MR CL SONI] for Applicant(s) : 1,
MR SN THAKKAR
for Respondent(s) : 1,
MR AS VAKIL for Respondent(s) : 1, 3,
None
for Respondent(s) : 2,4 - 10,13 - 14.
MR AMIT M PANCHAL for
Respondent(s) : 11,
MR KAMAL TRIVEDI, ADVOCATE GENERAL WITH MR. PK
JANI, PUBLIC PROSECUTOR WITH MS. SANGITA VISHEN, APP for
Respondent(s) :
12,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE PARESH UPADHYAY
Date
: 27/12/2011
CAV
ORDER
(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) The petitioner resident of village Pindarda claiming to be a social worker initially preferred the petition for the direction to the respondent no.12, the Chief Secretary of the Gujarat State, to take over the possession of the land bearing Block/Survey No. 219 paiki 1, admeasuring 92 hectare 84 are - 90 square metre (hereinafter referred to as "the land in question allotted to Sardar Sarovar Narmada Nigam Ltd.- 'for short SSNNL') and it has been further prayed to direct CBI inquiry for the offence committed by the concerned respondents to grab the aforesaid Government land. Alternatively, it has been prayed to direct the Director General of Police, CID Crime to inquire into the matter with the help of expert and submit the report to this Court for further action in this regard. Thereafter, when the matter came to be listed before the learned Single Judge on 27.11.2009, the learned counsel for the petitioner prayed for conversion of the petition into public interest litigation after completing the necessary formalities which was so permitted by this Court and accordingly, the petition came to be treated as Public Interest Litigation (PIL).
It appears that as per the petitioner, the aforesaid land came to be allotted to SSNNL, respondent no.11 for Samajik Vanikaran (social afforestation) by the State Government. As per the petitioner, the aforesaid land was a part of the land bearing Survey 355/1 admeasuring 269 hectare belonging to Thakoresaheb (ex-ruler) of village Aaloova comprising of forest and other Kotars located just adjacent to river Sabarmati and the land was being used by the agricultural labourers and other poor labourers belonging to Scheduled Tribes and they were earning their livelihood by collection of woods, leaves, honey and other various products. Out of the said total area, the aforesaid land came to be allotted to SSNNL. The allegation made in the petition by the petitioner is that the respondents each other made a criminal conspiracy under the guidance of one IAS officer Mr.K.Srinivasan to grab the land in question and in furtherance thereto, have forged the maps, plans and revenue record and durasti patraks by changing the survey number of the land showing that the land in question is not located at the bank of river Sabarmati. Consequently, respondent no.1 which is a non-trading association could float the scheme of Aalooha Hills Resort over the land which as per the petitioner was allotted to SSNNL and the allegation in the petition is that thereby, the land which was allotted to SSNNL by the Government has been grabbed over and since it is a public property grabbed by the respondent no.1 Association by tampering of the revenue record, etc., the present petition for not only taking back the possession of the land by the Government, but also for directing CBI inquiry or in any case the inquiry through the Director General of Police, CID crime.
It may be recorded that when the petition after being treated as PIL came to be heard on 20.01.2010, this Court found it proper to issue notice to respondent no.1 Aallooa Non Trading Association, respondent no.11 SSNNL and respondent no.12, State Government only and it was also directed that in the meantime, the State may take necessary inspection of the land in possession of respondent no.1 and give details of such land. Thereafter, on 18.03.2010, when the matter was further considered by this Court, following order was passed:
"Petitioner alleges illegal encroachments of land made by certain I.A.S. Officers and other officers along with affluent persons over the land allotted to Sardar Sarovar Narmada Nigam Ltd., Gandhinagar ("SSNNL"
for short). The 1st respondent - Association whose members stated to have illegally encroached the land, as also the 11th respondent have filed affidavits, denied the allegations, and especially stated that the land allotted in favour of SSNNL is still retained by them and no encroachment has been made thereon.
Learned counsel for the petitioner places reliance on some photographs to show that certain construction has been made by outsiders including the members of 1 st respondent over the land belongs to SSNNL which was allotted for the purpose of afforestation. He agreed that if his allegation is found to be incorrect, then the Court may impose heavy cost on the petitioner. On his request, the Court is agreed to get the land of SSNNL measured in presence of certain persons including the petitioner to find out whether any encroachment has been made by the members of the 1 st respondent or any other person. For the said reasons, we pass the following order:
(a) For the present, the petitioner will deposit a sum of Rs.20,000/- with the Registrar General of High Court of Gujarat by next Monday i.e. 22nd March 2010, who will keep the said amount in separate interest bearing account.
(b) The District Inspector of Land Records, Gandhinagar (for short "DILR") is directed to get the land measured through concerned Officials / Surveyors in presence of representative of 11th respondent, representative of Collector, Gandhinagar and the petitioner. Representative of 1st respondent, if so desires, may also remain present. The Officer will find out as to who is in possession of the land and whether any encroachment has been made by any person including the members of 1st respondent and submit a report preferably within three weeks.
(c) The DILR will find out the details of the land allotted in favour of 11th respondent-SSNNL, such as, Survey number / Block number, total measurement etc. from the affidavit filed by the Collector, Gandhinagar before this Court.
(d) The DILR, taking into consideration the record available with the State, will also find out whether the said land allotted to 11th respondent-SSNNL has been changed in the mean time or not.
(e) It will be open to the petitioner to show to the DILR any encroachment made by one or the other member of 1st respondent.
The petitioner, representative of the 11th respondent and representative of 1st respondent will contact the DILR by next Tuesday i.e. 23rd March 2010, while the said Officer will fix the date for measurement. Let a copy of this order be handed over to learned counsel for the parties.
Post the matter on 19th April 2010."
(Emphasis supplied) Thereafter, the report has been submitted by the office of the District Inspector of Land Records (for short "DILR") on 13.04.2010 (hereinafter referred to as the "first report"). The relevant portion of the said report to the extent as it may be found necessary shall be referred to hereinafter but it may be recorded at this stage that as per the said first report, the whole chunk of the land bearing block no.219 (original survey no.355/1) was 269-73-65 hectre-are-sq. mtr. and out of the said total area, the land admeasuring 154-74-19 hectare-are-sq.mtr. was already allotted to different persons earlier and thereafter, the land admeasuring 24 hectare subsequently was allotted, and the remaining area of hectare 91-02-46 hectare-are-sq.mtr. was allotted to SSNNL. As per the said report, with the sketch shown therein, and the map prepared at Annexure-53 to the said report, the land of SSNNL similar to area is available and as per the said report, the land of respondent no.1 is located at a place not covered in the area of the land allotted to SSNNL and the petitioner has raised the grievance based on uncorrected and unfinalised revenue record, but one more relevant aspect is that in the year 1997, when the area was measured by District Inspector of Land Record, Mehsana, one of the portion of the land allotted to SSNNL was measured as 43-07-19 hectare-are-sq.mtr., but the total area allotted to SSNNL was not to be actually measured earlier and came to be measured only by the present report after the aforesaid order passed by this Court.
It appears that when the process of measurement and the work of the office of the District Inspector of Land Record pursuant to the order dated 18.03.2010 was on, the petitioner preferred Criminal Misc. Application No.3065/10 contending that inter alia that he is not satisfied with the method and the manner of work being undertaken by the State Authority and therefore, prayed to appoint any judicial officer or any officer on the administrative side working under the judicial authority to supervise the functions to be carried out by the District Inspector of Land Records and in the said application, it was prayed by the petitioner to permit him to take the movie or live coverage of the functions being carried out for measurement of the land allotted to SSNNL and the protection was also prayed during the said coverage. This Court did not pass any order below the said application on 30.03.2010 but observed that the present application be treated as a part of the main petition. In the meantime, the aforesaid report came to be filed on 13.04.2010 being the first report.
The aforesaid Cr.Misc. Application No.3065/10 was being simultaneously heard with the main petition and on 08.09.2010 this Court passed the following order:
"Though report has been submitted, but there is a dispute relating to identification of land which was allotted in favour of Sardar Sarovar Narmada Nigam Limited (SSNNL). Respondents have brought on record the Letter of allotment, whereby, it was decided by the State Government to give the land on lease in favour of SSNNL, but they have failed to bring on record any instrument of transfer, like lease-deed, for proper identification of the land. In fact, this is the allegation of the petitioner that the present report has been submitted without proper identification of the land, and learned counsel for the petitioner fervently argued that the land allotted in favour of SSNNL includes Block No.219/26 Paiki, which is disputed by learned counsel appearing on behalf of the other respondents.
To decide whether for proper identification of the land and to resolve the dispute some other Central agency is required to be engaged, but deciding the same, the Court intends to go through all other reports, if available, with the respondents, from which proper identification of land allotted in favour of SSNNL can be made. It will also be desirable to supply English version of the Gujarati documents, including the allotment order, report(s), etc. Post the matter on 23.09.2010 at 2.30 p.m."
Thereafter, on 25.01.2011, the Court directed to implead Union of India through the Ministry of Survey as party respondent.
It appears that affidavit has been filed by the District Collector, Gandhinagar wherein he has stated the same chronology of the revenue record and the availability of the land allotted to SSNNL and the measurement thereof in line of the report submitted by DILR being the first report but the relevant aspect is that concerning to the allegation made against Mr.K.Srinivasan, it has been stated at paragraph 3.8 that respondent no.1 got the plan sanctioned from the office of the Town Planning Department, Ahmedabad in the year 2007 by the Town Planner, District Ahmedabad and at that time Mr.K.Srinivasan was the Managing Director the Gujarat Urban Development Company Ltd., Gandhinagar which had nothing to do with the task of approving the plan in any manner since the said Company was formed by the State Government with a view to provide civil infrastructure facilities in the urban area of the State. The another relevant aspect is that in the said affidavit, the District Collector has reconfirmed the correction of the revenue record (known as Durasti proceedings) as having been done in normal course that too in accordance with law. On behalf of SSNNL, the affidavit has been filed by Mr.SS Saiyed, wherein at paragraph 10, it has been stated that the possession of the land which was handed over by the Government to SSNNL on 22.12.1995 vide allotment order dated 16.03.1992 is still in the possession of SSNNL as on date and the revenue record also indicates the said factual position. The petitioner in the affidavit-in-rejoinder as well as the additional affidavits, has all the time reiterated the same aspect as that of alteration or tampering of the revenue record taking the basis of he old uncorrected or unfinalized revenue record. The affidavit has also been filed on behalf of respondent no.1 dated 07.02.2011 wherein it has been alleged that the petition is clearly an abuse of process of court and the petition is filed at the behest of one Indrasinh Bhikhaji Vaghela who was a Sarpanch of village Pindarda and it has been stated at para 13 of the said affidavit that the petition has been filed for the personal gain. When the project was floated for the right of way, some consideration was agreed and paid by the agreement dated 29.12.1999. Not only that, but there were other litigations initiated by the said Indrasinh and his supporters. The information, copy whereof are produced by the petitioner were supplied to Indrasinh under Right to Information Act and the name of the present petitioner is being substituted as an afterthought otherwise for all purpose, the petition has been filed at the behest of Indrasinh by resorting to subterfuge for extraneous consideration. The petitioner by relying upon the very litigation and representation made to various authorities has tried to show that the petitioner has been raising grievances for all villagers and such shows that he is a social worker.
It is in this factual broad background, we have to examine the petition to be considered as Public Interest Litigation. We may also state that there are various pleadings and counter pleadings by the parties, but we have referred to and we shall refer to in the present order to the extent as necessary for deciding the controversy.
It may also be recorded that at one point of time, the petition was heard and thereafter, on 18.08.2011, the following order was passed by this Court -
On 17.08.2011, i.e., yesterday, we had passed the following order -
"Arguments are concluded. Mr.Soni for the applicant is seeking time to inquire from his client only on the point as to whether the applicant is desirous to deposit the additional amount or not. S.O. to
18.08.2011."
Today, Mr.Soni, learned counsel appearing for the petitioner declared before the Court that as per the petitioner, the measurement taken by DILR with the help of DGPS (Differential Global Positioning System) shows that certain area has been found out for the purpose of showing the holding of the land in possession of the SSNNL. Whereas, on site, as per him, such portions are not available. In support of his contention, he had relied upon the map at Anenxure-50, prepared in the year 1997 (at page 237 of the compilation) of the report of DILR where it has been mentioned that the land admeasuring 43 Hectare-70 Are- 19 Guntha is only available as against the allotment made of 91 Hectare-02 Are-46 square metre alloted to SSNNL and therefore, it was submitted that the area which is in possession of SSNNL be measured by metes and bounds and physical verification thereof be made and he also submitted that the petitioner is ready to deposit the amount of Rs.3 lakh within two weeks with this Court without prejudice to the rights and contentions in the petition in the event the physical possession is found out to be otherwise inasmuch as the SSNNL is in possession of the total area allotted.
We may record that earlier, interim order was passed by this Court on 25.01.2011 to implead the Secretary, Department of Sample Survey as party.
We have heard the learned counsel appearing for the parties on the aspect as to whether the physical verification be made of the land which is in possession of SSNNL. At that stage, SSNNL has declared that it has no objection if there is physical verification of the land by way of re-measurement of the area which as per the report of DILR, is in its possession. Even otherwise also, we find that SSNNL being a State Government Corporation and the land belonging to the State Government having been allotted to SSNNL, is a public property and if the aspect of allegation is to be verified about encroachment made by certain persons, the physical verification would be a must.
We find that before the matter is concluded, such measurement deserves to be undertaken and the report also be placed in the present proceeding. We may also record that in order to see that in the event the allegations are found to be baseless and the expenses for the re-measurement of that particular area is not borne out from the public fund, Mr.Soni was called upon to declare as to whether the petitioner is desirous to deposit the amount or not and today he has declared that the amount shall be deposited with this Court. The aspect of appropriation or refund of the amount may await till the final decision, but it appears to us that if the re-measurement is undertaken of that particular area of the public property, it would help the Court to render the decision.
We have heard the learned counsel appearing for all the parties for the authority to be assigned the work for re-measurement of the aforesaid area. The learned counsels have given suggestions. We find that since the measurement is already undertaken by DILR, the officer who undertakes the measurement should be of higher rank and in the said work of measurement, there should be involvement of the representative of SSNNL and also central agency which as per Mr.Champaneri, learned Assistant Solicitor General could be Additional Surveyor General, Western Zone, Jaipur, either himself or an officer who may be nominated for such purpose but not below the rank of Class-I Officer.
Under the circumstances, we find it proper to constitute a committee for undertaking the measurement as referred to hereinabove. At the same time, the petitioner should also deposit the amount, but in order to save time, the petitioner may file undertaking for deposit of the amount and thereafter, he shall deposit the amount, but during the said period, at least process of measurement may begin. Hence, the following order -
The petitioner shall file undertaking before this Court on or before 24.08.2011 that he shall deposit the amount of Rs.3 lakh with this Court on or before 05.09.2011.
The petitioner shall abide by the aforesaid undertaking and shall actually deposit the amount of Rs.3 lakh on or before 05.09.2011.
The measurement of the land allotted to SSNNL admeasuring 91 Hectare-02 Are-46 square metre shown under the map at Annexure 53 (page 240 of the report of DILR) as 219 paiki/A to 219 paiki/I shall be undertaken by a committee comprising of The Settlement Commissioner, Gujarat State.
Shri R.K. Gurjar, Officer on special duty-joint measurement being the representative of SSNNL.
Additional Surveyor General, Western Zone, Jaipur, or the officer who may be nominated by him not below the rank of Class - I Officer.
It will be open to the Settlement Commissioner, Gujarat State to take help of the officer of the rank of Superintendent, Land Records.
The aforesaid Committee shall undertake the measurement of the aforesaid area by physical verification with the help of total station system, if required.
The process of measurement be completed on or before 20.09.2011 and the report shall be submitted on or before 22.09.2011.
In the report, all details about the position of the land as prevailing on site including construction or encroachment if any over the land shall also be stated.
Further, the different angle photographs about the position of the land shall also be taken and incorporated in the report.
All parties shall cooperate.
S.O. to 23.09.2011 for further orders."
It appears that thereafter, the work was undertaken by the committee so constituted by the Court after involvement of the agency of the Central Government and the report has been submitted on 08.10.2011 (hereinafter referred to as the "second report"). The petitioner thereafter has again tried to re-agitate the same issues for supporting the grievances raised in the petition by filing additional affidavit to which we find that if the controversy raised in the present petition is considered, the same would stand covered. Thereafter, we had once against heard the learned counsel appearing for the parties after submission of the second report.
Heard Mr.K.I.Patel, learned counsel appearing for the petitioner after submission of the second report, Mr. Mihir Joshi for respondent no.1, Mr.Amit Panchal for respondent no.11 and Mr.Kamal Trivedi, learned Advocate General with Ms.Sangeeta Vishen, learned APP for respondents no.12, State Government.
It is undisputed position that vide order dated 16.03.1992 (Annexure-1), the land admeasuring 91-02-46 hectare-are-sq.mtr. came to be allotted to SSNNL, but the relevant aspect is that as stated in the order of allotment of the District Collector, the whole block no.219 was comprising of the land admeasuring 269-73-65 hectare-are- sq.mtr. and out of the said area, land admeasuring 154-71-19 hectare-are-sq.mtr. was already allotted to different persons since the period of ankadiya (the practice prevailing during the period of Thakore, ex-ruler) and thereafter, land admeasuring 24 hectare was allotted to different persons and therefore, it was found that the remaining land was admeasuring 91-02-46 hectare-area-sq.mtr. It is also an admitted position that the land was allotted for afforestation for growing trees on lease basis. As per condition no.2, the possession of the land was to be handed over by Mamlatdar and the another relevant aspect is that as per condition no.1 it was so stated that the land after the possession was handed over, will be required to be measured by DILR and the measurement sheet shall be produced before the Mamlatdar. It is also not in dispute that on 22.12.1995, after the order for allotment, the possession was handed over by the Circle Inspector of the Revenue Department to SSNNL pursuant to the order of allotment of District Collector dated 16.03.1992. The relevant aspect is that when the possession was handed over, in the said panchnama, the boundaries were mentioned, which reads as under:
On North: Remaining land leaving land of persons to whom land is granted in land of Block No.219P touching to Block Nos. 218, 214, 210, 191, 190, 189, 187, 181 is situated.
On South: Ravalbhai is of Pindarda touching to outskirt of village Pindarda. His land of ownership having jujube tree that meas said land on East leaving granted land.
On East: In map there is road to Pindarda from Block No.267 and its land on West.
On West: The land of Block No.219 situated touching to outskirt of village Mubarakpura out of it land of Block No.219P granted to Rabari Sartanbhai Kalabhai, and remaining land leaving legal possession and that of other persons.
The relevant aspect is that on eastern side the road to Pindarda from block no.267 has been shown. Had the land located at river Sabarmati, or the land located on the bank of river Sabarmati, on the eastern side, the boundary would have been shown as touching to river Sabarmati or the bank of river Sabarmati, which does not exist.
Further, if the boundaries are taken into consideration for the purpose of tracing the actual land allotted and whose possession was handed over to SSNNL keeping in view the sketch at Annexure-53, of the DILR's first report, the land for which the possession appears to have been handed over by the aforesaid panchnama would tally with the boundaries of the land shown in the panchnama but the pertinent aspect is that on the eastern side of the said portion, there is no bank of river Sabarmati.
The recital in the order of allotment which came to be issued by the Collector in the year 1992 shows that the remaining land of block no.219 admeasuring 91-02-46 hectare-area-sq.mtr. was allotted to SSNL, but at that time, the remaining land was arrived at by arithmetic calculation of the total area minus the land already allotted earlier. Such would show that the land at the time of allotment was not actually measured by metes and bounds or by demarcating in particular the boundary of the area of the total land which was allotted.
There is no material available on record nor the petitioner has produced any material for such purpose showing that prior to the allotment of the land in the year 1992, the total area of block no.219 admeasuring 269-73-65 Hectrare-Are-Sq.mtr. was ever measured by any authority at any point of time and therefore, the explanation given by DILR for various parcels of land of block no.219 which resulted as the remaining land available for allotment to SSNL and thereby, demarcating in the sketch at Annexure-53 with the first report as 219A to 219I deserve to be accepted. The aforesaid aspect is coupled with circumstance that the total of the aforesaid various parcels of land shown in the sketch from 219A to 219I tallies with the total area allotted to SSNNL being 91-02-43 hectare-are-square meter. It is true that one of the parcel of the land shown in the sketch as 219I is also included in the total area alloted to SSNNL and if the location is considered of the said portion, the boundary on the eastern side is touching to Sabarmati river or the bank of river Sabarmati. But the said area is not referred to in the panchnama by which the possession was handed over in the year 1995 and it can rather be said that the remaining area excluding the area of 219/B and D from the total area of 219A to I was the residuary area of the block bearing no.219 resulting as the total area admeasuring 91-02-43 hectare-are-sq.mtr allotted to SSNNL.
It is true that in the sketch prepared by DILR in the first report (Annexure 53) the land in possession of the respondent no.1 association is shown as 219/26 and the boundary thereof is touching to Sabarmati river. The allegation or rather the basis of the petition is that the land which was otherwise allotted to SSNNL has been kept by tampering of the revenue record so as to make it available to respondent no.1. Even if it is to be considered for the sake of testing the genuineness thereof, the boundary of the land for which the possession was handed over as per the aforesaid panchnama, should have shown of Sabarmati river on the eastern side but such is not mentioned in the said panchnama. Under these circumstances, it is difficult to accept the contention of the petitioner that the land whose possession was handed over by the revenue authority to SSNNL is the same land which is in possession of respondent no.1. It may also be recorded that the possession came to be handed over in the year 1995 and at the relevant point of time, there was no birth at all nor floating of respondent no.1 which in any case has been floated in the year 1997 and the land concerned has been purchased by Shri Dave brothers from private land owners (rabari brothers) in 1996. The contention of the petitioner as such, runs counter to the panchnama for handing over of the land to the SSNNL, prepared in the year 1995.
On behalf of the petitioner, the grievance was raised by the learned counsel contending that whole manipulation could be said to have been made when the land shown in the revenue record of old survey number 355 admeasuring 1192 bighas as Government waste land, but the word Government (sarkari) was deleted and it was substituted by the word darbari (Ruler's). As such, it appears to us that the said contention does not carry the case of the petitioner further inasmuch as it is not a matter where for the particular area of 92 hectares, the aforesaid change is made in the revenue record. The documents which have been produced by the petitioner show that it was for the total area of the land admeasuring 1192 bigha bearing old survey no.355 is now given new block no.219P. Further, such has happened during the period from 1951-1952 to 1955-1956, i.e, immediately after the independence during the period when the revenue record was being prepared and maintained. In any case, we are not required to examine the title but it cannot be applied only to the particular land allotted to SSNNL as sought to be canvassed. Another aspect is that so far as the land held by Rabari brothers is concerned, the revenue entry did exist vide no.81 for allotment of the land by ex-ruler of Aalloova Thakor Shri Arjunsinhji Bharatsinhji by sale to these Rabari brothers in the Vikram Samvat 2007 (roughly more than 60 years back). The same is coupled with the circumstance that there are various entries in the revenue record of village form no.6 showing the allotment of various parcels of land including that for allotment of Trambakeshwar Mahadev Temple by the then Thakorsaheb (ex-ruler of Aalloova) as Dharmada Bakshsis. As such, in the petition, the basis is not by challenging the title, but is on the premise that the land allotted to SSNNL is grabbed over by respondent no.1. There was no birth of respondent no.1 at the relevant point of time when the word 'sarkari' was deleted by substituting the word 'darbari'. Therefore, in our view, the ground as sought to be canvassed does not appear to be of any help to support the case of the petitioner.
It was next contended by the learned counsel for the petitioner that in the revenue record, as prepared at the intial stage, the land allotted to SSNNL was shown as block no.219/1 paiki and the learned counsel attempted to further contend that since in the tippan, survey no.219 paiki 1 was shown as touching to river sabarmati, allotted on the eastern side, it is apparent that the very land is in possession of respondent no.1 and in the submission of the learned counsel for the petitioner, such could not have been possible unless the revenue record is tampered.
We may state that the District Collector in his affidavit dated 11.06.2010 has explained the said aspect at paragraph 2.4 which reads as under (English translation of Gujarati as produced on behalf of the State Government):
"2.4 Petitioner has produced Map at Annexure A/3 to the petition (page
23), which was prepared by DILR during 8th to 18th May, 1996 at the time of measurement of private land, bearing Temporary (Kachha) Block No.219 Paiki 1. It is pertinent to note that the said map at the top bears Entry No.M.R./98/Kalol/95-96, which is also reflected in Measurement and Classification Tab Register ('MTR' for short) of Kalol Taluka for the year 1995-96 wherein, serial No.98 contains the details of the application made by one Shri Rabari Navghanbhai Leelabhai for the measurement of his said private land. The said MTR is required to be maintained for each Taluka as provide in Manual of Land Records Department containing necessary guidelines issued by the State Government for this purpose. In fact, as per the settled practice, necessary entries are first made in the said register on the basis of the application for measurement and Village Form No.7/12. This is thereafter followed by the actual measurement and consequent preparation of map when the land in question is given Temporary number, which was Chalta No.219 Paiki in the present case. For ready reference, copies of the relevant pages of the said register, i.e. MTR as well as the aforesaid map are annexed herewith and collectively as Annexure-II (Colly.)"
It has been further stated at paragraphs 2.5 to 2.13 as under (English translation):
"2.5 It is likely that if one were to refer to the aforesaid map in isolation, it does not give any clue as to which particular land, it pertains to. However, if one refers to the aforesaid entry in MTR in Juxta position with the said map, it becomes amply clear that the said map was prepared in respect of the private land and not in respect of the land leased to SSNNL.
2.6 As aforesaid, initially necessary entries are made in MTR pursuant to the application made by the land owner for getting his lands admeasured, followed by actual measurement of land and consequent preparation of map. At that time, the land is awarded Temporary Block No. by DILR, as aforesaid.
2.7 Thereafter, as and when Durasti proceedings, i.e. Survey Corrections are carried out, as provided in the aforesaid Manual of Land Records Department, Kami Jasti Patrak ('KJP' for short) is prepared, wherein Temporary Block/Survey No. is given the pucca number which is, in turn, required to be conveyed to the concerned Mamlatdar along with KJP, who on the basis thereof, gives the very pucca number in computerized Village Form No.7/12. For ready reference, relevant extract from the said Manual of Land Records Department is annexed herewith and marked as Annexure-III.
2.8 At the time of commencing computerization of the manually prepared Village Form No.7/12 in the year 2001, instructions were issued to give pencil entries to the said Village Forms. In this behalf, copies of letters dated 11.3.1998 and 01.06.2001 from the Revenue Department issuing instructions in his regard to all Collectors, are annexed herewith and collectively marked as Annexure-IV (Colly.).
2.9 In the present case, manual Village Form No.7/12 in respect of the said private land was assigned 'P33' by way of pencil entry. As a result of computerization, computerized Village Form No.7/12 also described the said private land as bearing temporary Block No.219 Paiki 33. Copies of the said manual Village Form No.7/12 for the period from 1996-97 to 2004-05 as well as initial computerized Village Form No.7/12 for the period from 2005-2006 to 2007-2008 in respect of the said private land prepared as per the aforesaid instructions are annexed hereto and collectively marked as Annexure-V Colly.
2.10 As aforesaid, as a result of the preparation of the aforesaid map, the Block No. given by DILR to the private land therein was temporary Block No.219 Paiki 1. Thereafter, as a result of Durasti proceedings carried out in respect of the said private land, KJP was prepared, wherein the aforesaid temporary number was given the pucca number i.e. Block No.219/95. For ready reference copy of the relevant portion of the said KJP is annexed hereto and marked as Annexure-VI.
2.11 As discussed above, Manual of Land Records Department suggests that after carrying out of the Durasti proceedings by the DILR in respect of any land, the same may be given pucca Survey number by the DILR. This is, in turn, required to be conveyed to the concerned Mamlatdar, who on the basis of the said KJP, would give the very pucca number in Village Form No.7/12 as provided in Manual of Revenue Accounts, relevant extract whereof is annexed herewith and marked as Annexure-VII. That is how, lastly prepared computerized Village Form No.7/12 in respect of the said private land bears pucca Block No.219/26, which was earlier referred to in Manual Village Form No.7/12 with pencil entry "P33" and as 219 Paiki 33 in initial computerized Village Form No.7/12 prepared by the Mamlatdar, Kalol in respect of the private land in question is produced herewith and marked as Annexure-VIII.
2.12 Since measurement proceedings in respect of land leased to SSNNL have not been so far finalized by DILR, no temporary or pucca numbers have been awarded by DILR to the said land so far. In view of this, after the commencement of the computerization of land records w.e.f. June 2001, the Mamlatdar, Kalol while preparing Manual Village Form No.7/12 of the land leased to SSNNL, as aforesaid, marked the same with pencil entry "P1" in respect of the said land shown as having Block No.219 Paiki. As and when DILR will award pucca number to the said lease hold land, the same may be transmitted to the Mamlatdar, Kalol, who will thereafter enter the same in the Village Form No.7/12. In view of this, as discussed above, even the presently computerized Village Form No.7/12 in respect of land leased to SSNNL shows the said land bearing Block No.219 Paiki 1. For ready reference copies of the said Manual as well as computerized Village Form No.7/12 in respect of land leased to SSNNL are produced herewith and collectively marked as Annexure-IX (Colly.). A mere comparison of the said Village Forms clearly suggests that in the computerized Village Form No.7/12, land leased to SSNNL has been inadvertently described as N.A. land, which is, in fact, not so.
2.13 For creating unnecessary confusion, petitioner seeks to compare the aforesaid map in respect of private land with computerized Village Form No.7/12 (Annexure-B/5 at page 32) prepared by Mamlatdar, Kalol in respect of land leased to SSNNL on the basis of Manual Village Form No.7/12, which was marked with Pencil Entry as "P1"."
The first report of the DILR shows the same position. As apparent from paras 7.5 to 7.12 English translation of which is at internal pages 14 to 16, reads as under:
"7.5.
AT the time of data entry of above said entry made by pencil data entry operator has made entry as "219p" and 'N.A.' on computerized page of 7x12. In that process error is found in entering S.No./Block No. and in entering word 'N.A.' according to instruct of computerization. Even today for land of SSNNL same entries as Block No. "219p1" and "N.A." is in existence. (Annexure-20).
7.6 Among other land holders of Block No.219p of village Aallooa names of forefathers of Rabari Navghan Lilabhai etc. have been found entered in hand written page of &X 12 as "219p"
(Annexure-21).
7.8 As the land of Block No.219p of V.F.No.7/12 was purchased by Nayanbhai Manubhai etc. from said Rabari brothers, Block No.219p is also shown in their names. (Annexure-22).
7.9 At the time of computerization work of original hand written page of 7X 12 of Block No.'219p' of Manubhai Narbheram Dave (showing in bracket) entry as "p33" is made with pencil. (Annexure-23) and on same page names of Aallooa non-trading and scope consultancy are also entered. At the time of data entry of this new computerized 7X 12 is prepared as '219p33', and at that time names of Aallooa Non trading and scope consultancy are entered. (Annexure-24).
7.10 Land of Block No.219p is shown as sold to land holder Manubhai Narbheram, a scope consultancy under mutation entry no.760 (Annexure-25) and that to Aallooa Non trading Corporation under entry No.762 (Annexure-26) as detailed in V.F.No.6 and on hand written page of 7 x 12 Block No.'219p' of this Aallooa Non trading entry as "P33" is made with pencil (Annexure-23).
7.11 This entry of "P33" made with pencil has been shown as "219p33" in computerization process of 7X 12, and that has been entered in names of Aallooa Non Trading Corporation and scope consultancy. (Annexure-24).
7.12 In village record of Aalooa mutation entry No.1635 (Annexure-29) is made for Block No.'219p33' based on Durasti Patrak-11 (Annexure-28) under DILR letter No.RK/WS/268/08-09, dt.1/1/09 (Annexure-27), which has been certified. Thus on page of 7X 12 of Block No."219p33" effect of Block No.219/26 (Annexure-30) is given as per final durasti patrak in the name of Aallooa Non trading Corporation. Thus error in computerized data entry is found on page of 7 X 12 of SSNNL and as per instruction of Computerization Cell, Gandhinagar dated 01.06.2006 (Annexure-18) instead of making data entry of numbers as P1, P2 in &X12 of Block No. of SSNNL numbers are shown as "219P1" and "N.A.". (Annexure-20)."
Under these circumstances, it appears to us that the grievances raised by the petitioner based on kacha/tentative or uncorrected/unfinalised record prepared during the process of actual measurement and separation of the revenue record for each holder, if subsequently finalised after verification thereof, and given pakka number, the same is a part and process of the correction of the revenue record being done in normal circumstances. Hence, the basis of showing in the map of survey no.219 paiki 1 at the time when the kaccha record was prepared and thereafter, if altered by bifurcation of different allotment, it cannot be said that there is tampering of the record as sought to be canvased. Hence, the said contention cannot be accepted.
On the aspect of holding of the total land allotted to SSNNL and the allotment thereof in the report of DILR, at paragraph 10, the details are mentioned which we do not fined it proper to reproduce in the present order so as to not burden the record, but the relevant aspect is that at paragraph (4) of the report, the DILR has answered the question as to whether there is any change in the land allotted to SSNNL and the same reads as under (English translation):
"(4).
Is there any change in land allotted to SSNNL?
Collector, Mehsana under hisorder dated 16.3.1992 allotted total area of 269-73-65 H.A.Sq.mt. Of land of Block No.219, of which 154-71-19 H.A.Sq. mt. is given to different persons from period of Akadia and then land of 24-00 H.A. is also given to different persons. Therefore now only land of 91-02-46 H.A.Sq.mts. of Block No.219P remains.
That means leaving land allotted to different persons remaining all land is given to SSNN. But place and area of persons run as occupants on revenue record at the time of allotment of land to SSNN were not finalized. Except this leaving remaining land possessed by private persons at relevant time remaining open land is allotted to SSNN.
Thus from the beginning except land of Block No.219P remaining land of revenue record of Block No.219P run in the name of persons as occupants whose place & area are not finalized is allotted to SSNN.
Looking to occupancy receipt dt.22/12/95 it is understood that complete measurement of 91-02-46 H.A.Sq. mt. allotted to SSNN was not conducted at relevant time or on conducting measurement of land shown in map as shown in occupancy receipt land actually found shall be taken into account.
At the time of measurement of land of SSNN, land of 43-7-19 H.A.Sq.mt was measured but complete measurement of all open land of Block No.219P as per collector, Mehsana's order dt.16/3/92 was never undertaken. The land of other persons shown as occupants whose place and area was not finalized, the land except such land belongs to SSNN. At the time of measurement during 26 to 31/3/2010 land except authorized possession of occupants of Block No.219P was allotted to SSNN whose are a tallies as 91-02-46 H.A.Sq.mts. and it is available in land of Block No.219P (Ann.55). (map of 26 to 31/3/2010). So it is not so that land of SSNN has changed.
(5)Measurement work of petitioner can show encroachment. During measurement continuous demand of petitioner was that land of Block No."219P1" as per his submission is land of SSNN, and measurement of inside building construction should be conducted. Except this no other encroachment is shown at the time of measurement on any place of SSNN.
(1)In fact, this land is of private ownership and the representative of SSNN has never shown his possession. On record it is never revealed that this land belonged to SSNN. So submission of petitioner is not considered at the time of measurement and measurement of land of outer boundary of Block No.219/26 is conducted."
Incidentally, since the allegation was made by the petitioner in the petition that the land allotted to SSNNL has been encroached over, or rather grabbed by respondent no.1, in the DILR report, the aspect of selling of the land by the rabari brothers who had purchased the land from the then ex-ruler of Aallooa State and thereafter, those rabari brothers sold it to Dave brothers have mentioned in the report at paragraph 9 by showing the tabular statement, but we find that in view of the observations made by us that the premise of the petitioner of identifying the land which was in possession of rabari brothers, i.e., predecessor in title of Dave brothers who floated the scheme of respondent no.1 is different and rather shown as per map Annexure-53 and demarcated as 219/26, it would not be required for us to go into the further details of the aspects about the vesting of the title of the land in favour of the respondent no.1 or Dave brothers as the case may be.
In view of the aforesaid material on record, the observations and discussion, we find that the basis of the petitioner that the land allotted to SSNNL has been grabbed by respondent no.1 is on misconception and wrong premise. Consequently, the allegation of tampering or forging of the revenue record cannot be sustained for the alleged conspiracy or otherwise as sought to be canvased in the petition.
The aforesaid is coupled with the aspect that this Court at the initial stage had found it proper to issue the notice to respondents no.1,11 and 12 only and no notice has been issued to any other parties to the proceeding including respondent no.13. When the matter rested at that stage and further notice has not been issued to respondent no.13, the aspect of non-denial of the allegations by respondent no.13 would be of no consequence for examining the allegation made by the petitioner further but as observed earlier, the District Collector in the above referred affidavit has stated that the respondent no.13 was not concerned with when in the year 1997, the plan was approved or the scheme was floated by respondent no.1. It is hardly required to be stated that mere holding of a plot by respondent no.13 that too after 10 years of the floating of the scheme in the year 2007, would not be of any relevance to examine the allegation made by the petitioner in the petition by showing the linkage as sought to be canvassed. When the basis of the petition itself is found to be non-acceptable, the supplementing aspects or the alleged motive as sought to be canvassed would be of no relevance or any consequence.
The learned counsel for the petitioner did contend that once the averment made in the petition constitutes punishable offence under IPC, Court should as per parameter provided by Cr.P.C. take cognizance and direct for CBI inquiry or police inquiry and therefore, the averments made in the petition be treated accordingly.
We are afraid such contention can be considered in a petition filed as PIL invoking power of this Court under Article 226 of the Constitution. The complaint filed before the Court to the magistrate for taking cognizance of the offence committed would stand on different footing than that of a petition filed under Article 226 of the Constitution for setting the machinery into motion on the allegation of grabbing the land by tampering the record. Further, when this Court after having entertained the petition has called for the report and if this Court is not satisfied on the material available before it on the allegation made by the petitioner, the matter cannot be viewed in a one sided manner as alleged by the petitioner as sought to be canvassed. Hence, the said contention is misconceived and cannot be accepted.
As recorded earlier, vide orders dated 18.03.2010 and 18.08.2011, this Court in order to verify as to whether the allegation of the petitioner of grabbing over the land of SSNNL by respondent no.1 is genuine, or not and with a view to ensure that the public property is properly safeguarded and further in order to see that the first report of DILR may not be accepted as it was since the petitioner alleged involvement of the higher officer of the State Government and no impartial inquiry by the State agency, it was also directed for actual measurement of the land allotted to SSNNL by a committee comprising of the Central as well as State officials. Accordingly, second report has been submitted and as per the second report, the finding of the committee are as under:
"4 FINDINGS OF THE COMMITTEE:
a) The Re-measurement survey of block no.219 paiki/A to 219 paiki/I has revealed that the area of land allotted to SSNNL is 82 Hector-90 Are
- 97 Sq mtrs and 8 Hector-21 Are- 92 Sq Mtrs. area was found to be under the encroachment by various block (Survey) holders as detailed in the table shown in the map (Annexure IV). It is also mentioned that the encroachment shown above has been included the area covered by fencing or by fixed hedge by putting thors Vad.
b)Block 140 area admeasuring 49 Are-57 Sq mtrs previously shown as SSNNL land but now found to be in possession of valid land owner as per the revenue records.
c) The SSNNL land area comes out to be admeasuring 90 Hector-52 Are- 89 Sq. mtrs including encroachment instead of 91 Hector-02 Are-46 Sq mtrs. as indicated in the revenue records and also in the Hon'ble Court Order.
d) Our of land admeasuring 26 Hector - 66 Are- 15 Sq mtrs shown in DILR's map, only area admeasuring 25 Hector-58 Are-36 Sq mtrs was surveyed during present re-measurement task. The owners of the above land have their record of rights in Village form no 7/12 and the same will be finalized only after completion of enquiry by the concerned Revenue Authority.
e) In part-I, the actual position of block no 219/48 was found to be shifted downward. Though the area is in agreement as per Records but boundary and its geographic location is not in agreement with DILR's Map (Annexure-53).
f) There is no construction in SSNNL area."
It does show that there is no construction over the land allotted to SSNNL. Therefore, there is no encroachment made by making any superstructure over the land as further alleged by the petitioner, but it does show that the area admeasuring 8 hecrare 21 are and 92 square metre is under the encroachment covered by fencing or by fixed hutch by putting thors wad. Therefore, to that extent, the grievance as was raised on behalf of the petitioner when this Court passed the order on 18.08.2011 could be said as with substance. Consequently, such situation would call for the direction to be issued to SSNNL for removal of the encroachment over the land admeasuring 8-21-92 hectare-are-square metre. Further, in the first report of DILR, it has come on record that respondent no.1 has also made encroachment over certain area of bank of river Sabarmati which has been shown as 'M' in the sketch produced at Annexure-53 and therefore, such would also call for appropriate action to be initiated by the State officials through the District Collector or the competent authority for removal of such encroachment over the Government land. Of course, both the aforesaid action for removal of encroachment may be of the land of SSNNL or may be of the State Government has to be in accordance with law.
We do find that as per the first report of DILR, the expenses are incurred of Rs.1,88,800 by the State Government and as per the second report, the expenses incurred are of 2,55,169, total Rs.4,43,969/-. It further appears that the land though was allotted for afforestation, nothing has come out about the actual afforestation undertaken and it also appears that the period of lease in any case has expired. Therefore, such may also call for appropriate orders in this regard to the State officials.
In view of the aforesaid discussions, observations and findings, following directions are issued -
The allegation of the petitioner of encroachment or grabbing of the land by respondent no.1 of the land allotted to SSNNL are without any substance and consequently, the prayer for holding of any CBI inquiry or any further inquiry does not deserve to be granted. Hence, the same is rejected.
Respondent no.1 is directed to vacate the area shown as 'M' in the sketch at Annexure-53 of the DILR's first report by removing the construction, superstructure if any or any of its belongings within a period of one month failing which the respondent no.12 shall take further action in accordance with law, if required, with the help of the police to remove such encroachment made by respondent no.1.
The respondent no.11 is directed to remove the encroachment, within a period of one month, made over the area of the land admeasuring 8 hectare 21 are and 92 sq. mtr. out of the area allotted to it for afforestation by the State Government and are particularly marked and shown in the second report of the committee dated 08.10.2011. If in case of any failure on the part of respondent no.11 or any laxity shown in taking action, respondent no.12 through its Secretary shall take appropriate action against the concerned officials of respondent no.11 within one month thereafter for ensuring the compliance of the direction issued by this Court.
The compliance of the aforesaid directions (B) and (C) shall be made to the Registrar General of this Court and if such report is not received within three months from today, the Registrar General shall place the matter before this Court for appropriate orders.
The aforesaid direction shall not preclude the State Government from resuming the land allotted to SSNNL since the period has expired or there is alleged breach of the condition of allotment with the purpose of afforestation, unless the State Government, by its policy decision or otherwise, takes the decision to extend the period of lease by renewal thereof or otherwise.
Since the allegation made by the petitioner in the petition for grabbing of the land by tampering of the revenue record is not found acceptable by the Court, and the aspect of verification has caused to the State Government as well as to the Central Government, total amounting to Rs.4,43,969/-, appropriate cost deserves to be borne by the petitioner whose main grievance is found as non-acceptable and meritless. But at the same time, while undertaking such inquiry and investigation, encroachment by respondent no.1 over the Government land and encroachment over the land of respondent no.11 are found and therefore, while considering the aspect of imposition of cost, some relaxation deserves to be granted to the petitioner. In any case, even if such relaxation is considered, the amount of cost would not be less than Rs.3.20 lakhs as against the expenses already incurred of Rs.4,43,969/-. If strict view is taken, it would be a case for directing the petitioner to deposit the additional amount of Rs.1 lakh, since total cost is Rs.4 lakh and more because the actual expenses incurred by the Government are of Rs.4,43,969/-. But as the amount of Rs.3.20 lakhs has already been deposited and since to some extent, the inquiry of the petitioner has resulted into 10% benefit in comparison to the total area allotted to SSNNL, we find that the additional direction may not be issued for deposit of the amount towards cost. Hence, it is directed that the petitioner will be required to pay the cost of Rs.3.20 lakhs, being cost of Rs.2,45,000 to the State Government, respondent no.12 and cost of Rs.75,000 being the cost of Central Government. As the amount of cost of Rs.3.20 lakh is already deposited by the petitioner as per earlier orders passed in the petition, it would be open to the respondent no.12 or through the authorised government pleader to withdraw the amount of Rs.2,45,000/- and it would also be open to the respondent no.14 or its authorised counsel to withdraw the amount of Rs.75,000/-.
The petition as well as the application are disposed of in terms of the aforesaid direction accordingly.
(JAYANT PATEL, J.) (PARESH UPADHYAY, J.) FURTHER ORDER:
At this stage, after the pronouncement of the order, Mr.Patel, learned counsel for petitioner prays that the operation of this order be stayed for a period of six weeks so as to enable his client to approach before the higher forum.
Considering the facts and circumstances, the petition is disposed and no directions are issued against the petitioner. However, Mr. Patel submitted that if the withdrawal of the amount of cost is made, the petitioner will not be able to get the amount back. We are afraid such can be a valid ground for suspension of the order. Still however, in the interest of justice, it is directed that the office shall not permit withdrawal of the amount of cost as per the present order for a period of six weeks.
(JAYANT PATEL, J.) (PARESH UPADHYAY, J.) *bjoy Top