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CASE NO.: Appeal (civil)  5089 of 2006

PETITIONER: Kansing Kalusing Thakore and Ors

RESPONDENT: Rabari Maganbhai Vashrambhai and Ors

DATE OF JUDGMENT: 20/11/2006

BENCH: Dr. AR. Lakshmanan & Altamas Kabir

JUDGMENT: J U D G M E N T (Arising out of SLP (C) Nos. 124-125/2006)

Dr. AR. Lakshmanan, J.

       Leave granted.

This 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.  In 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.  The 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.   Land 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

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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  Government.    On 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  nature.  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.  125 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.  The 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.  In 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  body.  The appellants herein also filed an affidavit in reply  contending that: a)      There had been no violation of legal rights so as to  maintain a petition under Article 226 of the  Constitution of India. b)      The petitioners in the alleged PIL had made false  statements in as much as they were headstrong  persons of the village having political clout. c)      The petitioners in the PIL had suppressed material  facts including resolutions taken by Panchayat  Authority. d)      The petitioners in the PIL had acted with malafide  intentions by not making necessary and appropriate  parties.         By 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

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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.  The 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:- I.      The respondent Nos. 4 to 53 will not convert the  land into N.A.   But they will use the land only for  agricultural purpose.

II.     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.

The 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. The 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. The 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 challenged.  The appellants preferred a revision petition before the  High Court which, on 11.10.2005, was also dismissed.   Aggrieved by the orders passed by the High Court, the  appellants have preferred the above civil appeals.  We 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.       We 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 appeal.  Mr. 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

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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.   According 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.  Learned 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.  The Sarpanch 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.  Two panchnamas 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 a) the 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 b) lands so allotted were reserved for grazing i.e.  gauchar land (pasture) and c) land allocated vide order dated  09.08.2004 would affect cattle breeding.  We 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

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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.   The 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.   The 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.   This 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.  Even on merits, the respondents have absolutely no case.   The 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.   We 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

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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.   The 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.                 It is 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. LAND TO BE ACQUIRED/            LAND TOBE GRANTED ACQUIRED LAND.                  IN EXCHANGE.

1.      Upto 4 Acres                    Entire land.

2.      4 Acres upto 12 Acres   4 Acres.

3.      12 Acres to 15 Acres            1/3rd portion of the                                                  acquired land.

4.      Exceeding 15 Acres.             5 Acres.

If the 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 : LAND TO BE ACQUIRED/            LAND TO BE GRANTED ACQUIRED LAND.                  IN EXCHANGE. 1.      Upto 3 Acres                    Entire land.

2.      Above 3 Acres and               3 Acres.          Upto 9 Acres.

3.      Above 9 Acres and               1/3rd portion of          upto 12 Acres.                  Acquired land.

4.      Above 12 Acres.         4 Acres.

In our 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.  We direct the government and the other appropriate

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authorities to immediately handover possession of the land  allotted to them by way of rehabilitation.       Accordingly, 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.