PACHHAT VARGA SHRAMJIVI SAMUDAIK SAHAKARI KHEDUT co-OP. SOCIETY LIMITED vs HARIBHAI MEVABHAI

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1993 Supreme(Guj) 405

Gujarat High Court
Judgename :R.K.Abichandani
PACHHAT VARGA SHRAMJIVI SAMUDAIK SAHAKARI KHEDUT co-OP.SOCIETY LIMITED - Appellant
Versus
HARIBHAI MEVABHAI - Respondent
S.C.A.6051 of 1986
Decided On : 10/05/1993

Advocates Appeared: KUSUM M.SHAH, R.P.SOLANKI, SHIRISH JOSHI

Headnote:Bombay Land Revenue Code, 1879 - Sections 37, 38 & 39 - Gujarat Panchayat Act, 1961 - Section 305 - Order resuming disputed grazing land for the purpose of alloting it - Has the effect of extinguishing the right of villagers over free pasturage - Obviously such an order made without affording an opportunity of hearing or at least inviting objection against the course adopted by Collector not sustainable - Order liable to be set aside. On plain reading of Section 38 of the Code, it would appear that once the land is set apart for free pasturage of the village cattle, it shall not be used for any other purpose without the sanction of the Collector. Even when the land of this nature is to be disposed of under Section 37 of the Code, the Collector is required to have due regard to such special assignment of land. Section 39 recognizes grazing on free pasturage lands which are earmarked for such purpose under Section 38 as a right of the concerned villagers. Admittedly, the Government have prescribed the cattle to land ratio for setting apart adequate area of land for such purpose. When the law has recognized the existence of the right of the villagers over free pasturage lands, it is obvious that any action which has the effect of extinguishment of such right would adversely affect the grazers who are entitled to it. It therefore, follows that before their right is extinguished, they should be given an opportunity of having their say in the matter. Such a course is even implied in the provisions of Section 38 of the Code, which requires the Collector to have due regard to such special assignment while disposing of the land under Section 37 of the Code. Having regard to the nature of the right it will not be possible in such cases to give individual notice but inviting of objection against extinguishment of the right of free pasturage would be the minimum that an authority can do to protect its action from any arbitrariness that may creep in if the power is exercised without reference to the right which are statutorily recognized. Therefore, the view of the revisional authority as taken that the Collector could not have resumed the land without examining the free pasturage rights of the villagers is an enlightened view, which is in consonance with the law. It cannot be said that the Government in recognizing the necessity of hearing the affected villagers as regards their right of free pasturage over the lands set apart for the purpose, has committed any jurisdictional error.[Para 10]Gujarat Panchayat Act, 1961 - Section 96 (1) & (4) - Gaucher land vested in Panchayat - Resumption for the purpose of alloting it to landless labourers & poor Harijans - Permissible under law as human beings must have priority over cattle and such allotment to downtrodden class of people would be for a public purpose envisaged under the provision - Only requirement was to afford opportunity of hearing to the affected persons while extingushing their pasturage right - Order of Government upheld with direction to Collector to reconsider the matter afresh. While up-holding the requirement of giving a hearing while extinguishing such rights by atleast inviting objections against the course sought to be adopted by the Collector, one cannot ignore the fact that gaucher land may be required for other important public purpose of allotting it to landless labourers and poor Harijans would undoubtedly be a public purpose for which the lands can be validly resumed. As succinctly put by this Court (S. H. Sheth, J.) in Special Civil Application No. 2383 of 78 decided on 18.12.1978, human beings must have priority over cattle. It was held that grant of land to society of backward class persons out of gaucher was something which could not be called in question in a Writ Petition.[Para 11]It is clear that with a view to ameliorate the lot of down- trodden class of the populace, it is open to the Government to allot land to them for cultivation. Such allotment would be for a public purpose as envisaged by Section 96(4) of the Act. In this view of the matter, the Government ought to have, while setting aside the order of the Collector on the ground that he had not enquired into the matter and had not given opportunity to the affected person while extinguishing the free pasturage right left it open for the Collector to consider the matter afresh by giving an opportunity to the affected persons by inviting their objections against the extinguishment of their rights.In view of the circumstances, the impugned order of the Government is up-held. It shall however, be open for the Collector to consider the matter afresh in the light of the observations made in this judgement. Rule is discharged with no order as to costs.[Para 12 & 13]

ABICHANDANI, J.

( 1 ) ). The petitioners seek cancellation of the order made by the State Government on 20/10/1986 at Annexure "e" to the petition, made under Sec. 305 of the Gujarat Panchayats Act, 1961 (hereinafter referred to as "the Act") by which the order of Collector, banaskantha passed on 10-5-1986 resuming the disputed grazing land admeasuring 300 Acres from Survey No. 413 of village Khardosan for the purpose of allotting it as resolved by the Panchayat.

( 2 ) ). Admittedly, Survey No. 413 admeasuring about 540 Acres of village Khardosan was a gaucher land which vested in the Panchayat under the provisions of Sec. 96 (1) of the Act. There was a demand of the said land by the petitioners since 1979 for agricultural purposes. It appears that the respondent No. 4-Gram Panchayat rejected that proposal by its resolution dated 29/02/1984. The petitioners pursued the matter pointing out that they were landless labourers belonging to a down-trodden class. It appears that on 31-3-1986 the respondent-Panchayat passed the resolution bearing No. 24, resolving that 300 Acres of the land out of Survey No. 413 may be given to petitioner No. 1-Society by the Government after resuming it. Pursuant to the resolution passed by the Panchayat, the Collector, Banaskantha passed an order on 10th may, 1986 resuming 300 Acres of land from Survey No. 413 for the purpose of its allotment to the petitioner No. 1-Co-operative Society, as mentioned in the resolution of the Panchayat. It appears that the decision of the Collector was challenged by one Haribhai, Police Patel of the village invoking the revisional powers of the Government under Sec. 305 of the act. The revisional authority taking note of the fact that there were 3,260 of cattle heads as against gaucher land of about 540 Acres and the fact that the village people were not given any hearing before extinguishing the grazing rights over this land, which was earmarked for free pasturage, found that the Collector had committed an error in resuming the land without making necessary enquiry in the matter. It was held that the Collector ought to have taken into account the purpose for which the land was set apart and the adverse effect that the resumption would have had. The revisional authority, therefore, set aside the order of the Collector and directed the disputed land to be treated as gaucher land as before.

( 3 ) ). Mr. S. J. Joshi, learned Counsel appearing for the petitioners submitted that the land was resumed for the purpose of allocation to the petitioner No. 1-Society, whose members were landless labourers and poor harijans. He submitted that resumption for such purpose was resumption for a public purpose as envisaged by Sec. 96 (2) of the Act. He argued that the revisional authority had ignored the humanitarian aspect of the matter on the basis of which human beings ought to have priority over cattle. It was further contended that no hearing was required to be given by the provisions of Sec. 96 (4) while resuming gaucher land. According to him the land had vested in the Panchayat, which was a body corporate under Sec. 7 of the Act, competent to acquire and hold property. The property which vested in the Panchayat under Sec. 96 (1) could be resumed under Sec. 96 (4) for a public purpose and if at all, Panchayat was required to be heard and none else. He submitted that the free pasturage rights if any in the glazing lands stood abolished at the time when the grazing lands were vested by the State Government in the Panchayat under Sec. 96 (1) of the land. Therefore, if any hearing was required to be given, that stage had long passed. He submitted that the revisional authority while observing that hearing ought to have been given by the Collector and that the Collector should have enquired in the matter before making any order, had simply set aside the order of the Collector without directing him to enquire into the matter.

( 4 ) ). Miss K. M. Shah, learned Advocate appearing for the

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Judicial Analysis

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1993 Supreme(Guj) 405

Gujarat High CourtJudgename :R.K.AbichandaniPACHHAT VARGA SHRAMJIVI SAMUDAIK SAHAKARI KHEDUT co-OP.SOCIETY LIMITED - AppellantVersusHARIBHAI MEVABHAI - RespondentS.C.A.6051 of 1986Decided On : 10/05/1993

Cases Referred (3)

Judicial Analysis

Gujarat High Court
Judgename :R.K.Abichandani
PACHHAT VARGA SHRAMJIVI SAMUDAIK SAHAKARI KHEDUT co-OP.SOCIETY LIMITED - Appellant
Versus
HARIBHAI MEVABHAI - Respondent
S.C.A.6051 of 1986
Decided On : 10/05/1993