Kalusing Thakore & Ors Vs. Rabari Maganbhai Vashrambhai & Ors  Insc
826 (20 November 2006)
Ar. Lakshmanan & Altamas Kabir
out of SLP (C) Nos. 124-125/2006) Dr. AR. Lakshmanan, J.
is a Public Interest Litigation (in short 'PIL') by the villagers of Rasana
Nana in Gujarat. The appellants 1-6, who are the
respondents in the public interest litigations before the High Court, are the
appellants in these appeals who also belong to the same village.
this PIL, the following question of law of great public importance arise for
consideration of this Court which is, "whether the High Court failed to
appreciate that the process for rehabilitation was under a policy decision of
the Government of Gujarat and the lands being allotted to the appellants as an
administrative act, which allotments was in lieu of the lands of the appellants
acquired by the Government decades earlier, the judicial interference in the
decision making process and policy of the Government not warranted in the facts
of the case." The appellants' lands were acquired by the State Government
in the year 1954. This was in terms of Section 8 of the Bombay Merged Territory and Areas (Jagir Abolition Act) of
1953. The reason for the acquirement of the lands of the appellants by the
State Government was for the establishment of the Dantiwada Agricultural University. As per the Government Policy,
lands of such persons affected by the take over, allotment and/or reservation
of separate land had been made by the competent authority in the adjacent
villages, including village Rasana Nana.
appellants herein are challenging only that part of the impugned order which
affects their absolute right over the land given to them in lieu of their land
which was surrendered by them for the purpose of establishment of the Agricultural University.
in survey Nos. 125 and 126 in village Rasna Nana though earmarked for
rehabilitation was however not handed over to the persons affected by the take
over of the lands for the purpose of establishment of the University. Several
correspondences were made to the competent authority but for one reason or
another, the land in the said survey nos. could not be handed over. In the year
2003, some of the appellants approached the High Court through 3 separate
applications contending that although most of the persons affected had been
given lands as per Government allotment policy dated 18.07.1973 and 11.02.1997
the appellants had been subjected to inequitable treatment. Three orders on
different dates, i.e. on 20.09.2003, 14.10.2003 and 26.04.2004 were passed in
the aforesaid 3 applications by the High Court. Directions were given to the
competent authorities to consider and examine the case of each appellant and to
take appropriate decision thereafter in terms of the policy framed by the State
09.08.2004, the Deputy Collector passed 3 separate orders. He verified
individual cases and took a final decision after consultation with the
Collector whereby the reserved lands at survey Nos. 125 and 126 of village Rasana
Nana were directed to be granted over to the appellants who also paid the
occupancy price subsequently. It is stated that the order of the Deputy
Collector was in furtherance of the policy decision of the State and was part
of an Administrative Act. The appellants' claims were based upon the principles
of legitimate expectation and the reliefs claimed by them were equitable in
October, 2004, five persons of the said village filed a petition before the
High Court purportedly under public interest. They claimed themselves to be
"public spirited individuals". In this petition, the challenge was to
the 3 orders passed by the Deputy Collector allotting land from survey Nos.
and 126 of Village Rasana Nana and no challenge was made to the other
allotments of the said village. It was contended that the lands allocated by
this order was reserved for grazing of cattle i.e. Gauchar lands the
allotment/settlement of which would affect the breeding of cattle in the
village, such lands also serve as the water needs of the village.
appellants were deliberately not made parties in the writ petitions filed
allegedly in public interest. According to the appellants, the petitioners in
the alleged PIL are people holding clout in the village Rasana Nana and who
were all along enjoying illegal possession of the lands contained in survey
Nos. 125 and 126.
December, 2004, an application was filed by the present appellants before the
High Court and impleaded as respondents in the alleged PIL. This application
was allowed by the High Court. The Sarpanch of the village filed an
affidavit-in-reply opposing the relief prayed for in the writ petition. It was
stated that the lands in survey Nos. 125 and 126 were deemed to be Government
lands w.e.f. 01.08.1954 and were never Gauchar lands or vested in the Panchayat
appellants herein also filed an affidavit in reply contending that:
There had been no violation of legal rights so as to maintain a petition under
Article 226 of the Constitution of India.
petitioners in the alleged PIL had made false statements in as much as they
were headstrong persons of the village having political clout.
petitioners in the PIL had suppressed material facts including resolutions
taken by Panchayat Authority.
petitioners in the PIL had acted with malafide intentions by not making
necessary and appropriate parties.
virtue of the impugned order dated 04.08.2005, the High Court arrived at a
conclusion that there was hardly any material to indicate that the land in
question was pasture land and that such land was in fact reserved for the
rehabilitation of persons who were adversely affected by the acquisition of
their lands for the establishment of the agricultural university and that the
appellants herein had an existing right in terms of the Government policy and
hence entitled to equitable relief.
High Court did not find any infirmity in the order of the Deputy Collector
dated 09.08.2004. However, an argument was advanced on behalf of the public
interest litigants contending that the grantees i.e. the appellants herein
would not use the land for agricultural purposes and would sell it away. The
High Court imposed the following conditions:-
respondent Nos. 4 to 53 will not convert the land into N.A. But they will use
the land only for agricultural purpose.
The respondent Nos.4 to 53 shall not transfer the land either by sale or in any
other manner directly or indirectly by executing power of attorney, to any
other party and even if such power of attorney is already given in favour of
the third party, the concerned respondents shall revoke the same before
receiving the possession.
aforesaid conditions imposed by the High Court will remain in force for a
period of 15 years from the date of possession of the land.
Deputy Collector, Palanpur was directed to see that these respondents give
undertaking in writing to comply with the aforesaid conditions imposed by the
High Court. Unless such undertaking is given, the possession shall not be
granted to such respondents. The Deputy Collector was further directed to
ensure before giving possession of land that no need of Power of Attorney to be
executed by any of the respondents in favour of any other party. If it is found
to be so, he shall forthwith call upon the said respondent to revoke it and
render it ineffective. He is further directed that unless there is strict
compliance of the aforesaid terms and conditions by the said respondents, he
shall not put them into possession of the land in question.
High Court, thereafter, directed the Deputy Collector to give possession to the
appellants only after taking written undertakings of compliance of the
aforesaid conditions. It is this portion of the order which the appellants have
appellants preferred a revision petition before the High Court which, on
11.10.2005, was also dismissed.
by the orders passed by the High Court, the appellants have preferred the above
heard Mr. U.U. Lalit, learned senior counsel for the appellants and Ms. Hemantika
Wahi, Mr. Rajiv Mehta and Mr. Gaurav Agarwal assisted by Mr. Siddhartha Chowdhury,
learned counsel for the respective respondents.
have perused the resolution passed by the Government of Gujarat dated
18.07.1973, 11.02.1997 and the PIL filed by the respondents herein and the
counter affidavit and reply filed by the respective parties and also the
various orders passed by the High Court of Gujarat including the judgment in
U.U. Lalit, learned senior counsel took us through the relevant pleadings and
also the judgments and other records. He contended that the High Court was not
correct in its approach of imposing further conditions once it was evident that
the lands to be allotted to the appellants was not pasture lands and reserved
for allotment in terms of the Government policy. He further contended that the
conditions imposed by the High Court was not within the ambit and scope of the
PIL more particularly when the maintainability of the PIL was in issue and not
decided. It was further urged that the appellants who were being allotted lands
after about 30 years suffered inequity by imposition of such conditions by the
High Court inasmuch as many persons (whose lands had also been taken and who
were given/allotted lands decades earlier) were also subjected to such
restrictions and conditions. He also submitted that the High Court was not
correct in imposing a 15 year ban/restriction upon the appellants without any
rationale, reason and without any material on record.
to Mr. Lalit, the stringent conditions imposed by the High Court are not
sustainable in law inasmuch as the same amounts to judicial interference in
purely administrative acts where there is no involvement of any malafide and
allocations sought to be made are only in lieu of lands acquired earlier by the
Government, in furtherance of a policy decision aiming for rehabilitation.
Arguing further, Mr. Lalit submitted that the High Court was also not correct
in appreciating the fact that the only restriction in transferring the land was
provided for in Section 43 of the Bombay Tenancy and Agricultural Land Act and
such restricted tenure land can also be transferred after obtaining permission
from the Collector under the Bombay Land Revenue Code. In the instant case, by
adding these two conditions, entire transfer to the appellants was given a
discriminatory treatment. Concluding his argument, Mr. Lalit submitted that the
High Court was not right in presuming without any material that the appellants/allottees
will sell their land to the builders for constructing commercial complex.
counsel appearing for the State and for the Sarpanch invited our attention to
the counter affidavit filed in the writ petition. The Deputy Collector stated
that the petitioners in the PIL had personal interest involved and they were
actually encroachers and had been removed therefrom and that the process of
rehabilitation was a policy decision and that the public interest litigants
does not deserve any relief in the writ petitions.
of Village Rasana Nana filed an affidavit in reply opposing the relief prayed
for in the writ petition. It was stated that the lands in survey Nos. 125 and
126 were deemed to be Government lands w.e.f 01.08.1954 and were never gauchar
lands and are vested in the Panchayat body. It was further submitted that after
receipt of the notice from the High Court, the same was placed before the Panchayat
in its meeting dated 16.02.2005 and the Panchayat after detailed deliberation
and careful consideration taken the decision by resolving that the Panchayat
had no objection in the land being granted to the ousted persons on account of
setting up of Agricultural University.
were made in furtherance of orders made by the Circle Officer and Surveyor of
the Survey Department. It is recorded that all encroachments in the lands
sought to be granted were unauthorized and possession was recovered. Mr. Gaurav
Agarwal, learned counsel for the contesting respondent, after reiterating the
contentions raised in the writ petition, submitted that
lands allocated by order dated 09.08.2004 was not available for any purpose
other than to fulfill the water needs for the population of the village
so allotted were reserved for grazing i.e. gauchar land (pasture) and
allocated vide order dated 09.08.2004 would affect cattle breeding.
have given our careful consideration for the rival submissions made by the
respective counsel appearing for the respective parties. The writ petition
filed by the respondents herein is an abuse of the process of the Court. By
this PIL, the respondents sought to ventilate/redress their personal grievances
inasmuch as they are able to holding clout in Village Rasana Nana and were
enjoying illegal possession in several lands contained under said survey Nos.
125 and 126.
appellants herein were deliberately not made parties to the writ petition
allegedly filed in public interest. It is a matter of record that the writ
petitioners are the people who encroached upon the land sought to be granted to
the appellants herein and hence having no legal right to continue their illegal
occupancy, devised means to approach the High Court in alleged public interest.
This would be evident from the affidavit of the Deputy Collector filed on
24.03. 2005. The maintainability of the writ petition at the instance of the
respondents was specifically raised before the High Court.
maintainability of the PIL which was in issue was unfortunately not decided by
the High Court. The High Court, in our opinion, ought to have decided the
maintainability of the PIL maintained at the instance of the encroachers and
land grabbers and rejected the writ petitions at the threshold.
Court in a catena of decisions held that only a person acting bonafide and
having sufficient interest in the proceeding of PIL will alone have locus standi
and can approach the Court to wipe out the tears of the poor and needy
suffering from violation of their fundamental rights but not a person for
personal gain or private profit or political or any oblique consideration. The
High Court ought to have rejected the writ petition at the threshold as
observed by this court in (1992) 4 SCC 305 Janta Dal vs. H.S. Chaudhary &
Ors. In our opinion, the writ petition filed by the respondents was not aimed
at redressal of genuine public wrong or public injury but founded on personal
vendetta. It is the duty of the High Court not to allow such process to be
abused for oblique considerations and the petitions filed by such busy bodies
deserves to be thrown out by rejection at the threshold and in appropriate
cases with exemplary costs.
on merits, the respondents have absolutely no case.
records filed in this case clearly go to show that there had been no violation
of legal rights so as to maintain a petition under Article 226 of the
Constitution of India. The petitioners in the PIL had suppressed material facts
including resolutions taken by bona fide authority and acted with malafide
intentions by not making necessary and appropriate parties.
have already reproduced the conditions/restrictions imposed by the High Court
against the appellants herein. In the instant case, the appellants lands were
acquired by the State Government in the year 1954 and as per the government
policy, lands of such persons affected by the take over allotment and/or
reservation of separate land had been made by the competent authority in the adjacent
villages. It is also evident that the lands to be allotted to the appellants
was not pasture land and reserved for allotment in terms of government policy
and that the appellants were allotted lands after about 30 years. Under such
circumstances, the appellants are the ones who have suffered inequity for 30
years. The Court is not justified by the imposition of such stringent
conditions and, in particular, imposing a 15 year ban upon the appellants
without any rationale, reason and without any material on record. The stringent
conditions imposed by the High Court are not sustainable in law and inasmuch as
the same amounts to judicial interference in purely administrative acts when
the allegation sought to be made are only in lieu of lands acquired earlier by
the Government in furtherance of a policy decision aiming for rehabilitation.
By imposing such conditions, the High Court has jeopardized the rights of the
appellants who have been displaced and suffering for more than 3 decades. The
High Court also failed to appreciate the legal provision of Section 6 of the
T.P. Act when the transfer of the property can be prohibited only by provision
of the law and not by the judgment or direction referred in the writ petition
under Article 226 of the Constitution of India. The only restriction in
transferring the land is contained in Section 43 of the Bombay Tenancy and
Agricultural Land Act and such restricted tenure land can also be transferred
after obtaining permission from the collector under the Bombay Land Revenue
Code. In the instant case, by adding these two conditions the entire transfer
of the appellants are given discriminatory treatment.
Government of Gujarat, by its resolution dated 18.07.1973, considered the
question of granting the land to the affected account holders of these
villagers in lieu of the land at the place possible was under consideration of
the government and after consideration the government has resolved to adopt the
policy to the affected account holders.
resolved to grant the land to the account holders, whose lands shall be
acquired for establishing the Head Quarter of the Agricultural University, including the Main Campus, as per the following norms in
cases where the land shall be granted to them without the irrigation facility.
TO BE ACQUIRED/ LAND TOBE GRANTED ACQUIRED LAND. IN EXCHANGE.
4 Acres Entire land.
Acres upto 12 Acres 4 Acres.
Acres to 15 Acres 1/3rd portion of the acquired land.
Exceeding 15 Acres. 5 Acres.
land, which is likely to get the benefit of irrigation in near future, will be
granted to the affected account holders, it is resolved to grant the land to
them as per the following norms :
TO BE ACQUIRED/ LAND TO BE GRANTED ACQUIRED LAND. IN EXCHANGE.
3 Acres Entire land.
3 Acres and 3 Acres. Upto 9 Acres.
9 Acres and 1/3rd portion of upto 12 Acres. Acquired land.
12 Acres. 4 Acres.
opinion, none of the appellants have violated any of the rights guaranteed to
the petitioners in the writ petition either under the Constitution or under any
other law and hence the PIL filed by the respondents herein is not at all
maintainable and is liable to be dismissed. Now that the civil appeals are
allowed, we direct the respondent-authorities to grant possession of the land
immediately to the appellants without insisting for any undertaking from the
appellants as directed by the High Court in its impugned judgment. Since the
patience of the appellants have been tested for so long by the State Government
and other authorities and also the public interest litigant, it is not proper
for the government and other appropriate authorities to ask the appellants to
wait for any longer.
direct the government and the other appropriate authorities to immediately
handover possession of the land allotted to them by way of rehabilitation.
we dismiss the writ petitions filed by the respondents and allow the above
civil appeals and set aside the order impugned in these civil appeals passed by
the High Court of Gujarat. However, we order no costs.