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Record also reveals, more particularly the award, that the land in question for the purpose of 'gamtal' (village site) was merged with Adhoi village 'gamtal' and a mutation entry in this regard was ordered to be effected in the revenue records and the panchayat records. The award itself provides that as per the rules, after the allotment of the plot (building) to the eligible beneficiary, the excess land will have to be kept for the use for public purpose in the village.
It appears that after utilizing 200 acres of land for the purpose of rehabilitation, the balance 100 acres of land fell vacant and the local gram panchayat set its eyes on the same.
This Writ Petition (PIL) No.19 of 2011 came up for hearing for the first time on 17th February 2011 and on that day notice was issued upon the respondents. Upon notice being served to the respective respondents, they have appeared before us and have opposed this petition by filing respective affidavit-in-reply.
I. Stand of Respondent No.2 - Collector, Kutch :
As per the say of respondent no.2, 119.55.34 hectares of land was acquired as 'gamtal' for Adhoi Gram Panchayat, Taluka Bhachau, District Kutch. The said land is 'gamtal' and it is under the purview of the Gram Panchayat, Adhoi. The administration of the Gram Panchayat regarding 'gamtal' land is supervised by the Taluka Panchayat and the District Panchayat.
Petition is not maintainable as the Government of Maharashtra has not been made a party respondent and it is very much essential to know the stand of the State of Maharashtra. When all the applicants have been granted land indiscriminately and no person is deprived of any of his legitimate right, no illegality can be said to have been committed by the Panchayat.
VI. Legal contentions on behalf of the Petitioner : Mr.Yatin
Oza, the learned senior counsel appearing for the petitioner, strenuously urged that there cannot be a better case than the present one to demonstrate as to how the Panchayat in a most arbitrary and highhanded manner distributed land to different individuals and institutions without any power of such distribution or grant. Mr.Oza submitted that the facts of the present case are very eloquent. After the earthquake, the State of Maharashtra extended its helping hand and decided to provide funds for construction of almost 2000 houses which got destroyed. For this purpose, 300 acres of land was acquired by the State of Gujarat on urgent basis and out of which 200 acres of land came to be utilized whereas 100 acres of land remained surplus. Mr.Oza further submitted that the award provides that 300 acres of land which was acquired would be a part of Adhoi village 'gamtal' land, but by merely including the land in a 'gamtal' of village will not confer power upon the local panchayat to deal with the same in the manner they deem fit without seeking any permission of the higher authorities like the Collector or the State. If 100 acres of land remained surplus, then in that case, the land could have been utilized for any other genuine public purpose but in any case the Panchayat could not have allotted land at their sweet will for the purpose of constructing temples, 'bhojanshalas', community halls, lavish bungalows, residential schemes, etc. Mr.Oza invited our attention to Section 110 of the Gujarat Panchayats Act, 1993, which provides for limitation of power of Panchayat to transfer immovable property. Section 110 of the Act is reproduced herein as under :
Section 110 imposes a limitation on the power of Panchayat to transfer immovable property. Section 110 makes it very clear that subject to the provisions of sub-section (2), no lease, sale or other transfer of any immovable property vesting in, or acquired by a panchayat, shall be valid unless such lease, sale or other transfer has been made with the previous sanction of the competent authority.
Bare perusal of above provisions of the Act makes it abundantly clear that panchayat can never be said to be the owner of any land. Section 37 of the Bombay Land Revenue Code makes it absolutely clear that all lands wherever situated, which are not the property of individuals, or of aggregate of persons legally capable of holding property, shall be the property of the Government and it is only the Collector, subject to the orders of the State Government, who is empowered to lawfully dispose of them in such a manner as he may deem fit, or as may be authorized by general rules sanctioned by the Government concerned. Therefore, it is fallacious to contend that panchayat being the owner of the land could have allotted the land to different individuals and institutions by just passing a resolution without seeking any permission from the competent authority, namely, the Collector or any other officer empowered in this regard by the State Government. Panchayat cannot take shelter of the fact that the land which was acquired was ordered to be merged with the 'gamtal' of Adhoi village. Just because 300 acres of land acquired under the acquisition proceedings initiated by the State Government was ordered to be merged with the 'gamtal' of village Adhoi will not make the Panchayat the owner of the land.