SCA/8955/1999 1/58 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8955 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= ANILBHAI GAJANAN VYAS - Petitioner(s) Versus STATE OF GUJARAT & 4 - Respondent(s) ========================================================= Appearance : MR NM KAPADIA for Petitioner(s) : 1, GOVERNMENT PLEADER for Respondent(s) : 1 - 2. MR PRASHANT G DESAI for Respondent(s) : 3, MR DC DAVE for Respondent(s) : 4, NOTICE SERVED for Respondent(s) : 5, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 8/12/2006 ORAL JUDGMENT 1.By way of this petition under Article 226 of the Constitution of India, the petitioner, whose land was acquired by the State Government under the SCA/8955/1999 2/58 JUDGMENT provisions of the Land Acquisition Act along with other lands, has prayed for an appropriate writ, direction and/or order for quashing and setting aside the order dated 24th January, 1997 passed by the State Government ( The Under Secretary, Revenue Department, State of Gujarat, Gandhinagar) and communicated to the respondent No.4 (The Administrator, Asharam Bapu Ashram, Surat) vide communication dated 27.1.1997 by which, the State Government has regularized the unauthorized encroachment made by the respondent No.4 over the land of the petitioner as well as other agriculturists which was acquired by the State Government for Surat Irrigation Division, Surat under the provisions of the Land Acquisition Act. A further prayer is also made directing the respondent Nos. 1 to 3 and 5 i.e. the Secretary, Narmada and Water Resource Department, The District Collector, Surat, The Commissioner of Municipal Corporation, Surat, and The Secretary, Revenue Department to pass orders granting the lands of the petitioner on permanent basis to the petitioner as SCA/8955/1999 3/58 JUDGMENT has been done in case of other similarly situated agriculturists by directing them to remove the unauthorized and illegal encroachment on the land of the petitioner. 2.The questions which are posed for consideration of this Court in the present Special Civil Application are (i) what is important : public interest or private interest? (ii) How far the State Government was justified in regularizing the encroachment made by the respondent No.4 – a religious trust, though the lands were acquired under the provisions of the Land Acquisition Act and were needed by Surat Municipal Corporation for public purpose i.e. Water Works Project ? (iii) When there is a conflict between public interest and private interest – who has to give way ? 3.It is the case on behalf of the petitioner that :- The petitioner was holding certain lands bearing Survey No. 104/1 admeasuring about 2-Acres, 11- SCA/8955/1999 4/58 JUDGMENT Gunthas and 53-Ares at village Jahangirpura, situated in Surat. The lands of the petitioner and other agriculturists were situated on the river bank of river Tapi. Due to heavy flood, people of Surat city and other towns situated on the river bank were experiencing devastations and damages and some citizens also lost their lives and agricultural lands near the bank of river Tapi turned into river bed and land owners sustained heavy loss and precious agricultural lands were destroyed and rendered useless for agricultural purpose. In order to protect the soil, a project to construct embarkments (Palas) was planned. The project – scheme was sanctioned by the State Government and the lands of the petitioner as well as other agriculturists came to be acquired in the year 1977 by initiating proceedings under the Land Acquisition Act. That after the lands were acquired and actually put to use for which it was acquired, as per the policy of the State Government to make and allot optimum SCA/8955/1999 5/58 JUDGMENT use of the agricultural land for agriculturist purpose, the State Government decided and directed the Collector to grant the said lands to erstwhile owners i.e. the petitioner and other agriculturists on yearly rental basis i.e. Ek Sali basis on payment of premium/rent to the Collector. The petitioner and other agriculturists were accordingly in occupation of the said land allotted to them from year to year on Ek Sali basis and they were cultivating the same. Thus, for constructing Tapi Embarkment Scheme popularly known as “Pala Yojana” large parcels of lands abutting on river Tapi and belonging to the petitioner as well as other agriculturist of village Rander, Adajan, Jahangirpura, etc., were acquired. On completion of said scheme, large parcels of valuable agricultural lands remained surplus with the State Government. The Government decided to hand over the excess lands to the original owners. The agriculturists of village Rander, Adajan, Jahangirpura and other villages made a representations from time to time to the State Government for release of surplus land SCA/8955/1999 6/58 JUDGMENT remaining unutilized. Though the lands were acquired along with the lands of the petitioner, the possession of the land of the petitioner was not taken over by the Government and the petitioner as well as other similarly situated persons were allowed to cultivate their lands on Ek Sali basis till the Government actually takes possession for the purpose of Pala Yojana. The petitioner also paid revenue to the Irrigation Department. That since the land of the petitioner and other similarly situated persons – agriculturists were not required further as the flood embarkments were constructed, the State Government took a decision to return the land to the original land owners and in respect of the lands of Adajan village the State Government decided to return the agricultural lands to the original land owners on payment of Rs.25/- per meter and withdrawing appeals vide order dated 10.2.1991 (Annexure – C). That in respect of the lands of village Rander, the State Government passed an order on 28.19.1993 returning the land to the original land owners (Annexure – D) and the SCA/8955/1999 7/58 JUDGMENT State Government decided to release 245011 mts of excess land remaining after completion of Pala Yojana and authorized the Collector to regrant of the said lands to the original land owners on permanent basis. The petitioner also made several requests oral as well as written to the different authorities to regrant the land of Survey No.104/1 of Jahangirpura but the land was not regranted (Annexure – E Collectively). In respect of the release of lands of Jahangirpura, the respondent No.1 vide its order dated 21.9.1993 bearing No. F.W./A/1092/1362 (7) J-1, decided to return the unutilized lands of the petitioner and other agriculturists. In the meantime, the Surat Municipal Corporation decided to construct water works for the people of the areas of Jahangirpura, Rander and Adajan by passing necessary resolutions for acquiring lands bearing Survey Nos.103 to 109/4 from the State Government. The State Government vide its order dated 21.9.1993 agreed in principle to sell the same to the Surat Municipal Corporation for the purpose of construction of water works and SCA/8955/1999 8/58 JUDGMENT the total area of the aforesaid survey numbers required was 55361 sq mts (Annexure – F). In the meanwhile, in the Month of January / February, 1996, the followers of Ashram of Asharam Bapu – respondent No.4 encroached upon the said land. Though the petitioner has been cultivating the said land by paying land revenue in view of the directions of the State Government after acquisition, the possession of the said land was snatched away by the followers of the Asharam Bapu Ashram. Nearby the land of the petitioner, the land bearing Survey No.103 towards the otherside, the embarkment, there is Ashram of Asharam. The management of the aforesaid Ashram is gradually encroaching on the lands. The inmates of the Ashram were acting high handedly and were also using force against the officers of the Municipal Corporation when they tried to remove the encroachment. Due to fear of the followers of Asharam Bapu, petitioner could not dare to file complaint which is evident from the fact that even the officers of the SCA/8955/1999 9/58 JUDGMENT Municipal Corporation who had gone to take possession of the land owned by the petitioner and encroached upon unauthorizedly by Ashram Bapu Trust, they were attacked with deadly weapons and some of them received even serious injuries. News were also published in the news paper, however, police did not take any action keeping in view high links of the followers of Ashram Bapu. Annexure – G Collectively are the news items published in the local news papers. That the said Asharam Bapu is having large number of followers who are very influential and having political links and even head strong also. They attacked on the officers of the Corporation. As Asharam Bapu and his followers were having good contacts and high links with the State administration and politicians and as a result of which, though the said lands were decided to be allotted to the Corporation for construction of the water works, they obtained orders from the Government regularizing the lands on which unauthorized encroachment was made by them and instead compelled Government to take decision to SCA/8955/1999 10/58 JUDGMENT acquire other lands of village Rander for the purpose of construction of water works and accordingly the order came to be passed on 3.8.1998 to allot some other land to the Surat Municipal Corporation. In the meantime, the State Government passed an order dated 24.1.1997 regularizing the unauthorized encroachment made by the followers of Asharam Bapu made upon 34400 sq mts of land upon land bearing Survey Nos. 103/1, 103/2 and 104/2 situated at village Jahangirpura, Choryasi, Surat. Being aggrieved and dissatisfied with the same, the petitioner has preferred the present Special Civil Application under Article 226 of the Constitution of India for the aforesaid reliefs. 4.Shri N.M.Kapadiya, learned advocate appearing for the petitioner has submitted that the land upon which an encroachment was made by the said Asharam Bapu Trust was acquired by the State Government under the provisions of the Land Acquisition Act for “Pala Yojana” and as has been seen in the case of other villages i.e. Rander, Adajan, etc., the SCA/8955/1999 11/58 JUDGMENT lands of the petitioner situated at Jahangirpura, if not required for public purpose should be returned back to the petitioner on permanent basis and the same cannot be allotted to the respondent No.4 by paying premium to high handed action and unauthorized encroachment. It is also further submitted that in fact, the very land upon which the respondent No.4 encroached upon and for which the regularization order came to be passed was needed by the Surat Municipal Corporation – a public authority for water works i.e. public purpose and inspite of that due to political influence and for other reasons, the encroachment made by the respondent No.4 came to be regularized, which is absolutely illegal, mala-fide and arbitrary. It is also further submitted by him that in fact earlier the orders were already passed on 21.9.1993 to return the lands to the original land owners – agriculturists. It is also further submitted that in fact, the Special Civil Application No. 303 of 1997 was pending before this Court filed by some social workers in which it was SCA/8955/1999 12/58 JUDGMENT prayed to direct the State Government to grant the lands in question to the Surat Municipal Corporation for the establishment of the water works for Jahangirpura, Adajan and Rander area and in which it was also prayed for an appropriate order directing the respondents authorities to take appropriate prompt action for the purpose of removal of encroachment on the land in question and inspite of the aforesaid facts and during the pendency of the said Special Civil Application, the State Government took a hasty decision to regularize the encroachment made by the respondent No.4 and without affording any opportunity of being heard to the petitioner. It is submitted that the decision to regularize the unauthorized encroachment made by the respondent No.4 is in breach of principles of natural justice and the same is taken with ulterior motive and under undue influence and on account of some extraneous political consideration. It is further submitted that the decision of the Government in regularizing unauthorized and illegal encroachment would be SCA/8955/1999 13/58 JUDGMENT paying premium to high handedness of the inmates of Asharam. It is further submitted by him that it is the modus operandi of the inmates of the Asharam Bapu – followers of the Ashram Bapu to encroach the Government land of any kind situated nearby the Ashram gradually by hooks or cooks. It is further submitted that if the Government does not want the said land for the construction of the water works, the same should be returned to the original owners of the land on permanent basis as has been done in other cases. It is further submitted that the action of the respondents in not returning the land to the original owners is discriminatory and violative of the Article 14 of the Constitution of India as so far as village Rander and Adajan are concerned, the remaining lands which were acquired for the Pala Yojana and which were unutilized and/or not required further for Pala Yojana have been returned to the concerned agriculturists and so far as the petitioner and other agriculturists of Jahangirpura village are concerned, not only the lands have not been returned to them but the SCA/8955/1999 14/58 JUDGMENT unauthorized occupation and encroachment made by the respondent No.4 on the said land have been regularized by the State Government. It is further submitted that though the Government has in principle agreed to return back the unutilized agricultural land to the original agriculturists on permanent basis, the Government without assigning any reasons changed the decision and decided to regularize the unauthorized encroachment made by the respondent No.4 which is absolutely arbitrary, mala-fide, illegal and based on extraneous consideration and political motive and is passed in colourable exercise of the powers. It is also further submitted that in fact, the lands were allotted to the petitioner and other agriculturists on Ek Sali basis for the purpose of cultivation and they were in possession of the land in question which came to be snatched by the administrators of the Ashram and the followers of the Asharam Bapu. It is further submitted by him that as stated above even the lands in question which was encroached upon by the respondent No.4 and which came to be SCA/8955/1999 15/58 JUDGMENT regularized was in fact needed by the Surat Municipal Corporation for public purpose for which a resolution was also passed and at one point of time the State Government has also took a decision to allot the land, still only with a view to favour the respondent No.4, the said decision was not acted upon. Thus, the State Government acted illegally and arbitrarily and has given more importance to the private interest rather than the public interest and that too by regularizing the encroachment of huge lands made by the respondent No.4. It is further submitted that in fact, the said decision was taken with a view to frustrate the aforesaid Special Civil Application No.303 of 1997. It is also further submitted that in fact, the construction of the water works for the people of village Adajan, Rander and Jahangirpura was needed and the same was in public interest, still the State Government gave more weightage to the interest of the person and/or Ashram who has encroached upon the Government land. Thus, it is requested to allow the present Special Civil SCA/8955/1999 16/58 JUDGMENT Application by quashing and setting aside the order passed by the State Government regularizing the unauthorized encroachment made by the respondent No.4 on the land which was acquired by the State Government which was originally belonging to the petitioner and other agriculturists and which was acquired under the provisions of the Land Acquisition Act for Pala Yojana and as the same is not needed by the State Government for the purpose for which the same was acquired, to return the land to the petitioner and other agriculturists of village Jahangirpura as has been done in the case of other agriculturists of village Rander, Adajan, etc. 5.The petition is opposed by the respondent No.4 – Ashram. An affidavit-in-reply is filed on behalf of the respondent No.4 – Ashram. It is submitted that the present Special Civil Application is required to be dismissed on the ground of delay and laches as the order impugned in the present petition is dated January 3, 1997 whereby, the possession of SCA/8955/1999 17/58 JUDGMENT the respondent No.4 – Ashram admittedly since 1984 has been duly regularized by the State Government and the present Special Civil Application has been filed in the year 1999. It is submitted that the respondent No.4 - Ashram is carrying out its multifarious socio-economic spiritual activities, which are legally permitted by the State Government under the provisions of the Bombay Land Revenue Code and therefore, there is no illegality committed by the State Government in regularizing the encroachment and allotting the land in favour of the respondent No.4 – Ashram. It is further submitted that the petitioner has no locus now to challenge the action of the State Government in regularizing the encroachment allotting the land to the respondent No.4 – Ashram as once the land of the petitioner has been acquired under the provisions of the Land Acquisition Act, the petitioner do not have any right over the land and the State Government can deal with the land. It is also further submitted that the contention on behalf of the petitioner that as the purpose for SCA/8955/1999 18/58 JUDGMENT which the land was acquired does not exist and therefore, the land is to be reallotted and/or returned to the original land owners, cannot be accepted. It is further submitted that the land in question is allotted to the respondent No.4 – Ashram for the public purpose and that too for a consideration. It is also further submitted that pursuant to the order passed by the Collector, Surat dated 30.1.2006 an amount approximately to the tune of Rs. 30 Lacs came to be paid by the respondent No.4 – Ashram in favour of the State Government. No other submissions have been made on behalf of the respondent No.4 – Ashram except challenging the locus of the present petitioner and that the land is allotted to the Ashram for the public purpose and the possession of the respondent No.4 – Ashram has been regularized in accordance with law and therefore, it is requested to dismiss the present petition. 6.No reply is filed on behalf of the State Government. In the facts and circumstances of the SCA/8955/1999 19/58 JUDGMENT case and to know how the decision was taken by the State Government to regularize the encroachment made by the respondent No.4 – Ashram and that too the encroachment on the huge land admeasuring 34,800 sq mts that too in the prime locality of Surat city and more particularly, when the land was needed by the Surat Municipal Corporation for public purpose, this Court called upon the State Government to produce the original File and the learned Advocate General produced the said File through Chief Secretary, Revenue Department, State of Gujarat. On going through the entire File and the decision making process, certain shocking facts have come out which will be discussed hereinafter. However, considering the entire File, the learned Advocate General on the basis of the instructions from the Chief Secretary, Revenue Department, State of Gujarat, has conceded that the impugned order and the action of the State Government in regularizing the encroachment in favour of the respondent No.4 – Ashram and that in allotting the land in question to the respondent No.4 – Ashram is SCA/8955/1999 20/58 JUDGMENT absolutely illegal and the same cannot be sustained in the eyes of law. However, the learned Advocate General has submitted that the State Government is not in a position to pass any further order correcting their mistake and/or to set aside the orders and/or revoking and recalling the order which is impugned in the present Special Civil Application. Thus, the State Government is not in a position to defend their action for regularizing the unauthorized encroachment made by the respondent No.4 – Ashram and has conceded that the impugned order and the action is absolutely illegal. 7.An affidavit-in-reply is filed on behalf of the Surat Municipal Corporation affirmed by the Town Planner. It is submitted that since the Corporation has demanded the land bearing Revenue Survey Nos.103 to 109 for Water Works, the application made by the applicant has been filed vide communication dated 4/11.12.1995. SCA/8955/1999 21/58 JUDGMENT It is also further submitted that the Standing Committee of the Corporation by resolution Nos.1845 dated 18.12.1989 and thereafter General Body by resolution No.301 dated 24.1.1990 passed a resolution for demand of the land situated at village Jahangirpura bearing Revenue Survey Nos.103 to 109 admeasuring total area as 84,424 sq mts for Water Distribution Works. That the proposal was made to the Collector by letter dated 7.2.1990 by the Corporation. That thereafter the Administrator vide resolution No.302 dated 27.5.1994 passed a resolution for the land in question of Revenue Survey Nos.103 to 109 i.e. the land to be obtained subject to conditions laid down by the State Government vide letter dated 21.9.1993 by Narmada and Water Resources Department, Gandhinagar. It is also further submitted that for the land in question again the proposal was made to the Collector vide letter dated 6.7.1994 by forwarding the copy of the resolution No.302 dated 27.5.1994 and the State Government agreed in principle to allot the land in question to the Corporation for SCA/8955/1999 22/58 JUDGMENT Water Distribution Works and in that regard the Section Officer of Narmada and Water Resources Department had written letter dated 21.9.1993 to the Executive Engineer, Irrigation Department, Surat. It is also further submitted in the reply that for the said revenue survey numbers the land in question is also reserved in revised development plan by SUDA i.e. for Water Distribution Centre for the respondent – Corporation. It is also further submitted that the respondent No.3 is local self Government working for the betterment for the citizens of the Surat and the Corporation provides basic civil facilities and amenities to the citizens of the Surat and one of their main duty is to provide drinking water to the citizens. It is also further submitted that therefore the Corporation has to carry out Water Distribution Works for the said area and the land in question is required to be acquired by the respondent – Corporation for the Water Distribution Centre. 8.Before considering the rival submissions made on SCA/8955/1999 23/58 JUDGMENT behalf of the respective parties, at this stage, it is required to point out the facts which has come out from the relevant File to appreciate how and in what manner such an illegal and arbitrary decision has been taken in favour of the respondent No.4 – Ashram by which, encroachment made on the huge parcels of land admeasuring 34,800 sq mts of land in the prime locality of Surat city has been regularized in favour of the respondent No.4 – Ashram inspite of the fact that the very land was needed by the Surat Municipal Corporation – a public authority for public purpose. It is also required to be noted that the Officers on administrative side had put up their notings that the land is needed by the Surat Municipal Corporation for public purpose and therefore, the same cannot be regularized in favour of the respondent No.4 – Ashram and inspite of that, the then Revenue Minister, State of Gujarat, Shri Atmaram Patel, directed to regularize the encroachment made by the respondent No.4 – Ashram. SCA/8955/1999 24/58 JUDGMENT