OKHAJI GIRDHARJI PATEL Vs. COLLECTOR BANASKANTHA

JUDGEMENT

(1.) Both these petitions involve the dispute with regard to the gauchar land of village Bhensana, a part of which was resumed. The controversy between the parties in both the cases is based on identical facts and involve common questions and. therefore, I propose to decide both these matters by this common judgment and order.

(2.) There is no dispute between the parties that on 31/05/1978, the Collector. Banaskantha. had passed an order resuming the land admesuring 103 acres 11 gunthas of Survey Nos. 54, 56 and 137 of village Bhensana. Gram Panchayat, Bhensana under Sec. 96(4) of the Gujarat Panchayats Act. on the basis of the census of cattle which was conducted in the year 1971. Aggrieved from this resumption of a part of the gauchar land. Bhensana Gram Panchayat filed Special Civil Application No. 1355 of 1978 challenging the order of resumption. In this Special Civil Application, it was held out by way of a statement in the affidavit-in-reply on behalf of the respondents that the land was required for settling the flood-affected people of village Nana Jampur and because the proposal was moved in the year 1973 which was based on the figures of the census of cattle, conducted in the year 1971. This Special Civil Application No. 1355 of 1978 was dismissed by the Court on 1 3/07/1994 and thus, the order of resumption attained finality- Accordingly, on 3-2-1989. the entry was mutated in the revenue records of rights and in 1992, the landless applicants of village Bhensana were informed by the Mamlatdar, Deodhar. that the land was reserved for Hood-affected people for Nana Jampur and therefore. the same could not be granted to them. Now, the question came with regard to the use and disposal of this land which was resumed and. therefore, the Collector. Banaskantha, passed an order on 27/05/1994 for holding a Land Kacheri. A reading of this order dated 27/05/1994. Annexure-E mentions that the land so resumed was to be given to the landless persons belonging to backward class, but the landless persons belonging to backward class neither demanded nor consented to take this land and. therefore, it had remained as it is. This order dated 27/05/1994 then records that the refugees of Indo-Pak War of 1971 including Shri Tekchandbhai Thakker etc., had made a demand for agricultural land and. therefore. the question of disposal of the land was to be decided through the Land Kacheri and the list had to be finally decided by the Land Kacheri and later on. a notification dated 18/04/1995 was issued by the Prant Kacheri. Radhanpur under the signatures of the Deputy Collector. Radhanpur. which has been placed on record as Anncxure-F. Thus. on one hand. the petitioners in Special Civil Application No. 8491 of 1995 who are agriculturists and villagers of village Bhensana claimed thai if the resumed land out of the gauchar land of Panchayat Bhensana is not being put to the use for the flood-affected people, and whereas the same is being used as gauchar land even uptil now. despite the order of resumption passed by the Collector, under Sec. 96(4) of the Panchayats Act. it should be allowed to be continued to be used as gauchar 'and and the order dated 27/05/1994 Annexure-E may be set aside; the petitioners in Special Civil Application No. 6907 of 1996 claiming to be the refugees of Indo-Pak War of 1971 claimed that the land should be given to them on the basis of the Land Kacheri as had been ordered vide order dated 27/05/1994 and the subsequent notification which was issued on 18/04/1995; at the same time, respondent Nos. 4 to 26 in Special Civil Application No. 8491 of 1995 who were arrayed us respondents on the basis of the order passed by the Court on 25/11/1996 in Civil Application No. 7291 of 1996 and who claimed to be the landless persons of village Bhensana itself want that this land should be allotted to them. It is. therefore, clear that while the legality of the resumption of the land itself has been questioned by the petitioners in Special Civil Application No. 8491 of 1995, the petitioners in Special Civil Application No. 6907 of 1996 are claiming this land for them as War refugees and the respondent Nos. 4 to 26 in Special Civil Application No. 8491 of 1995 are also claiming the very same land.

(3.) So far as the resumption of the part of the gauchar land of Panchayat Bhensana which was ordered way back on 31-5-1978 is concerned, the resumption cannot be said to be illegal merely because the land has not been put to the actual use for which it was resumed and more particularly when the Gram Panchayat-Bhensana itself had approached this Court by way of Special Civil Application No. 1355 of 1978 with the prayer to set aside the resumption order and the said Special Civil Application was dismissed, there is no question of now declaring the order of 31/05/1978 to be illegal on any of the grounds as have been submitted. Mr. B. N. Patel appearing for the petitioners in Special Civil Application No. 8491 of 1995, i.e. villagers of village Bhensana has submitted that the Gram Panchayat, Bhensana had agitated-against the resumption of the land itself, but the villagers seek to enforce the right of grazing of the cattle on the gauchar land and according to Mr. Patel. even if the land had been resumed by the Government, it could not negate the rights of the villagers for such area of pasture land as was required on the strength of the cattle of the village, and. therefore, the villagers could not be deprived of the right of the cattle grazing on such area of the gauchar land which is required according to the principle and strength of the cattle with the villagers in this village. He has submitted that even if the Panchayat's petition had been dismissed by the Court, the villagers are entitled to relief for an appropriate and sufficient area as a gauchar land for the grazing of the cattle of the villagers. Mr. Paid has placed strong reliance on Sec. 38 of the Bombay Land Revenue Code, which reads as under :