Gujarat High Court
Rajabhai vs State on 12 January, 2010
Author: M.R. Shah
Bench: M.R. Shah
Gujarat High Court Case Information System
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SCA/144/2010 5/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 144 of 2010
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RAJABHAI
AMRABHAI RABARI & 1 - Petitioner(s)
Versus
STATE
OF GUJARAT & 4 - Respondent(s)
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Appearance :
MRSUDHAKARBJOSHI
for Petitioner(s) : 1 - 2.MRCHAITANYASJOSHI for Petitioner(s) : 1 -
2.
MR. NIKUNT RAVAL AGP for Respondent(s) : 1,
None for
Respondent(s) : 2 -
5.
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CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 12/01/2010
ORAL
ORDER
1. By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for following relief:
(a). Issue a writ of mandamus or any other appropriate writ, order or direction to the Respondent No.1 State directing the same to protect the possession of the Petitioners for the purpose of protecting and maintaining the domestic animals situated at the Kharaba Land-Vada bearing Revenue Survey No. 183/1 paiki 1 situated at Thorala Village, Morbi Taluka,Rajkot District.
(b). Issue a writ of mandamus or any other appropriate writ, order or direction to the Respondent No.1 State directing the same to regularize the possession of the Petitioners and thereby allot alternative plot/ land on grounds of parity and equity with other maldharis of the Thorala village whose rights have been regularized as being traditionally using and possessing the Kharaba Land-Vada bearing Revenue Survey No. 183/1 paiki 1 situated at Thorala Village, Morbi Taluka, Rajkot District.
(c). Issue a writ of mandamus or any other appropriate writ, order or direction to the Respondent No.1 State directing the same to allow the Petitioners to purchase the said land, for the purpose of protecting and maintaining the domestic animals, situated at the Kharaba Land-Vada bearing Revenue Survey No. 183/1 paiki 1 situated at Thorala Village, Morbi Taluka, Rajkot District.
(d). Issue a writ of certiorari or any other appropriate writ, order or direction against the Respondent No.2 Collector quashing and setting aside the impugned order dated 25.2.2009 passed by the respondent No.
2 Collector, Morbi whereby the order to sell the Kharaba Land-Vada bearing Revenue Survey No. 183/1 paiki 1 has been passed in favour of the respondent No. 3 Mandali;
(e).
Issue a writ of certiorari or any other appropriate writ, order or direction against the Respondent No.3 Panchayat quashing and setting aside the impugned order dated 1.12.2009 passed by the Respondent No.2 Panchayat, Morbi whereby the resolution to sell the Kharaba Land-Vada bearing Revenue Survey No. 183/1 paiki 1 has been passed in favour of the respondent No. 3 Mandali;
Thus, considering the aforesaid prayers the same are in two part (i) protecting the possession of the petitioners and (ii) to quash and set aside the order dated 25.02.2009 passed by the respondent No.2 Collector, Rajkot to allot / sale in favour of the respondent No.5 Mandali/ Society.
2. Shri Joshi, learned advocate for the petitioner has vehemently submitted that petitioners are Maldharis and having domestic animals. Therefore, the said purpose erstwhile King of Morbi had allotted the disputed Kharaba land/ Vada land to the petitioners and allow them to use,occupy and possess the said land. Accordingly since several years, the petitioners have been in possession of the said Kharaba land/ Vada land. It is submitted that though the petitioners are in occupation and possession of the disputed Kharaba land/ Vada land, the same has been allotted to respondent No. 5 Mandali/ Society for the purpose of construction of godown. It is submitted that use of the land by the petitioners being Maldharis is constitutional legal and public purpose and it is in the public interest that the land should be allotted to the petitioners. It is submitted that even the decision dated 25.2.2009 to allot the land in favour of the respondent No.5 is in breach of Section 110 of Gujarat Panchayat Act. It is submitted that as per Section 110 of the Gujarat Panchayat Act the land which have been allotted to the Panchayat of Village by the concerned Government cannot be sold, without prior permission of the appropriate authority. It is submitted that in the present case, no such permission has been obtained by the respondent Collector and straightway order for selling the same has been passed which is absolutely illegal.
3. Shri Joshi, learned Advocate for the petitioner has relied upon the following decisions.
Bhupatbhai Oghadbhai & Ors Vs. State of Gujarat & Ors. reported in 1996(1) GLR, 600 (para 8).
Deesa Taluka Anushuchit Jati Samudaik Keti Sahakari Mandali Vs. State of Gujarat & Ors. reported in 1997(4) GCD, 314 (para 6).
Okhaji Girdharji Patel Vs. Collector Banaskhantha reported in 1999 (2) GLR 1693.
By making above submissions and relying upon the above decisions, it is requested to allow the present Special Civil Application.
4. Petition is opposed by Shri NK Raval, learned AGP by submitting that as such so far as the petitioners are concerned, they have encroached upon the government land and even the proceedings were initiated against them under Section 61 of the Bombay Land Revenue Code for illegal encroachment and unauthorized occupation of the government land. It is submitted that to encroach the land even for the purpose of keeping domestic animals and preparing the sheds cannot be said to be public purpose. The petitioners are having their private domestic animals such as cow, buffalo etc. and they cannot be permitted to encroach upon the government land and to prepare the sheds for keeping the said domestic animals for their personal use. It is submitted that as the land in question was a Kharaba land/ Vada land belonging to the State Government, the Collector, Rajkot has passed the impugned order in accordance with law and on payment of market price. Therefore, it is requested to dismiss the present Special Civil Application.
5. Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that though the petitioners in the petition have claimed that they were allotted the disputed Kharaba land/ Vada land by the erstwhile King of Morbi and they were allotted to use, occupy and possess the land in question for keeping the domestic animals, no such allotment is on record. On the contrary, it has come on record that petitioners are in illegal and unauthorized occupation and possession of the government Kharaba land/ Vada land and even the proceedings were initiated against them under Section 61 of the Bombay Land Revenue Code in the year 1981 and penalty was imposed. Despite the proceedings under Section 61 of the Bombay Land Revenue Code in the year 1981, even thereafter petitioners are continued to be in illegal and unauthorized occupation of land in question and have constructed / put up the sheds for their cattles / domestic animals. Respective petitioners have no legal right to continue on the land in question and / or for allotment of the land in question. It is to be noted that at no point of time petitioners have prayed for allotment of the land in question. Under the circumstances, when the respective petitioners have no right to continue on the land in question which is government Kharaba land/ Vada land their possession cannot be permitted, more particularly, when proceedings were initiated under Section 61 of the Bombay Land Revenue Code and order of penalty was passed.
6. Now, so far as challenge to the order of allotment dated 25.2.2009 in favour of the respondent No. 5 is concerned, it appears that the said land has been allotted to the respondent No. 5 on payment of full sale consideration at the rate of 316 per sq. mtr., price which was determined by the District Valuation Committee. As the land is a government Kharaba land/ Vada land the reliance place upon Section 110 of the Gujarat Panchayat Act is misplaced. Section 110 of the Gujarat Panchayat Act would be applicable only in a case where the land belongs to Panchayat and / or land is given to Panchayat for administrative and management and same is disposed of. So far as the petitioners are concerned, as stated above they have encroached upon the government land and they have no right to continue on the land in question and therefore, they cannot challenge the impugned order dated 25.2.2009 of the Collector, Rajkot to allot the land in favour of the respondent No. 5 society which is on payment of full sale consideration i.e. market price. In view of the above, decisions relied upon by the learned advocate for the petitioners are not applicable to the facts of the present case.
7. Now, so far as reliance placed upon the decision of the Division Bench in the case of Bhupatbhai Oghadbhai & Ors (supra) is concerned, it is to be noted that in the case before the Division Bench the State Government resumed the gaucher land for public purpose which was challenged on the ground that by such resumption for allotment to persons belonging to Scheduled Castes and backward communities, there was a reduction of gaucher land. It is not so in the present case. So far as the petitioners are concerned, they were found to be in illegal and unauthorized occupation/possession of the land in question which is now allotted to respondent no.5. Petitioners being in unauthorized possession cannot challenge the allotment in favour of respondent no.5.
Similarly the decision of the learned Single Judge in the case of Deesa Taluka Anushuchit Jati Samudaik Keti Sahakari Mandali (supra) and in the case of Okhaji Girdharji Patel (supra) shall not of any assistance to the petitioners.
8. In view of the above, there is no substance in the present petition, which deserves to be dismissed and is accordingly dismissed.
(M.R.SHAH, J.) kaushik Top