ANILBHAI GAJANAN VYAS Vs. STATE OF GUJARAT

JUDGEMENT

(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 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 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-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 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 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 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 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 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 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.