Gujarat High Court
Pashu Pakshi Prant Kalyan ... vs State Of Guajrat Thr' Secretary & 2 on 2 November, 2006
Author: Jayant Patel
Bench: Jayant Patel
SCA/9130/2006 1/7 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No. 9130 of 2006
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PASHU PAKSHI PRANT KALYAN MANDAL-THR'MANAGING TRUSTEE -
Petitioner(s)
Versus
STATE OF GUAJRAT THR' SECRETARY & 2 - Respondent(s)
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Appearance :
MR ANSHIN H DESAI for Petitioner(s) : 1,
MR MENGDEY, AGP for Respondent(s) : 1,
NOTICE SERVED BY DS for Respondent(s) : 2,
MR DC SEJPAL for Respondent(s) : 3,
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CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL
Date : 02/11/2006
ORAL ORDER
1. Leave to join Assistant Charity Commissioner, Junagadh as party respondent.
2. Upon hearing Mr.Desai, learned Counsel for the petitioner, Mr.Mengdey, learned AGP for the State Authorities, and Mr.Sejpal, learned Counsel for respondent No.3, it prima facie appears that as such the position of the petitioner Trust is of unlawful and unauthorised occupant as an encroacher. However, this Court at the time when considered the matter for the first time on 28.7.2006 had passed the following order:
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1. Mr.Desai, learned Counsel appearing for the petitioners, under the instructions of his client, states that the petitioner is desirous to see that the activity of the Trust are continued to Pashu Pakshi Prani Kalyan and he has no objection in entrusting the management of the Trust and of the property to the Officer, who may be nominated by the District Collector, or to Society of Prevention of Cruelty to Animals and/or to the Officer, who may be nominated by the Charity Commissioner/Assistant Charity Commissioner for such purpose and he submits that after the entrustment of the management of the property, the Government may consider the matter for allotment of the land to the petitioner Trust in accordance with law.
2. In view of the above, Notice returnable on 11.8.2006. Mr.Mengdey, learned AGP waives service of notice for Respondent No.1.
Direct service for Respondent No.2. In the HC-NIC Page 2 of 7 Created On Sun Aug 20 17:56:13 IST 2017 SCA/9130/2006 3/7 ORDER meantime, no coercive action shall be taken."
3. Today Mr.Desai has reconfirmed the said position. However, Mr.Mengdey, learned AGP attempted to submit that as the petitioner is encroacher over the goacher land, the eviction is rightly ordered and this Court may not interfere.
4. It prima facie appears that had it been a case for an encroachment for private purpose of any individual, who has encroached over the land, it may stand on a different footing and Court may take a strict view of the matter for protection of the public property, but in a matter where the public/Government land is being used for larger benefit of the residents of the area or for the public at large, which in the present case is for rendering services to the animals and some educational activity and providing of drinking water to nearby area, it may stand on a different footing. As such, with a view to ensure that the office bearers of the petitioner Trust may not be in a position to exploit any HC-NIC Page 3 of 7 Created On Sun Aug 20 17:56:13 IST 2017 SCA/9130/2006 4/7 ORDER undue benefit by projecting the charitable activity, the aforesaid declaration was recorded when this Court considered the matter on 28.7.2006 and the same was also for testing the genuineness and bonafide on the part of the petitioner to continue with the charitable activity. The land which is otherwise reserved for cattle, if used for rendering services to the cattle by holding cattle camps, providing treatments to the injured and sick cattle and other incidental charitable activities, the same would be for a step in furtherance for which the land is reserved and, therefore, such activities can be allowed to be continued, but at the same time, it may be required for the District Collector to reconsider the matter, keeping in view the activities of the Trust as to whether the land can be allotted to the petitioner Trust for continuing with the activities as per the prevailing policy of the State Government or not. Until the aforesaid exercise is taken, if the activities are continued, the same would be in the larger interest of the residents of the HC-NIC Page 4 of 7 Created On Sun Aug 20 17:56:13 IST 2017 SCA/9130/2006 5/7 ORDER nearby area and more particularly to the cattle, who are beneficiary of the activities.
5. Under the above circumstances, I am inclined to pass the following order:
(a) RULE. By interim order, it is directed that:-
(i) the District Collector, Junagadh, respondent No.2 herein either himself or through officer not below rank of Dy. Collector shall take over the possession of the land, including the property in question and the management of the petitioner Trust both by drawing proper panchnama in presence of Managing Trustee of petitioner Trust within a period of two weeks from the date of the order of this Court.
(ii) After taking over the said possession and management, the possession of the property and the management of the petitioner Trust shall be entrusted within a period of two weeks thereafter to the Committee comprising of; (1) HC-NIC Page 5 of 7 Created On Sun Aug 20 17:56:13 IST 2017 SCA/9130/2006 6/7 ORDER Officer who may be nominated for such purpose by the Assistant Charity Commissioner from his office who shall be as Chairman; (2) One representative from Society of Prevention of Cruelty to Animals, whose nomination shall be finalized by the District Collector; (3) One representative from the office of the District Collector; and (4) Talati-cum-Secretary of Khadia Gram Panchayat.
(b) The aforesaid Committee shall continue the present charitable activities of the petitioner Trust and the present Managing Trustee of the petitioner Trust, Shri R.G.Aparnathi shall be at liberty to render assistance to the committee for betterment of the activities of the petitioner Trust. The aforesaid Committee shall be at liberty to take all necessary actions for compliance of the aforesaid direction.
(c) After the aforesaid two directions are complied with, the District Collector, Junagadh shall reconsider the matter for regularization HC-NIC Page 6 of 7 Created On Sun Aug 20 17:56:13 IST 2017 SCA/9130/2006 7/7 ORDER and/or grant of the land in question to the petitioner Trust as per the prevailing policy of the State Government, keeping in view the activities being rendered and to be rendered to the residents of the area and more particularly to the cattle and others. The aforesaid exercise shall be completed preferably within a period of three months and the report shall be placed before this Court. After the report is submitted, it would be open to either side to move this Court for modification and/or final hearing of the matter.
2.11.2006 (Jayant Patel, J.) vinod HC-NIC Page 7 of 7 Created On Sun Aug 20 17:56:13 IST 2017