1. These petitions arise in similar factual background. They were therefore heard together and being disposed of by this common judgement.
2. Special Civil Application No.5386/2008 has been filed by residents of village Zarpara, Taluka Mundra, District Kutch. In this petition filed in the nature of PIL, petitioners have prayed for quashing and setting aside orders passed by respondent No.1 and 2 i.e. the State and the Collector of the District Kutch, by virtue of which certain lands allotted to Village Panchayat for the purpose of Gauchar(grazing) came to be resumed by the Sate and ultimately came to be allotted to respondent no.3 for creation of Mundra Special Economic Zone (“Mundra SEZ” for short).Principal objection of the petitioners to such orders passed by the State authorities is that the land earmarked for the purpose of Gauchar in the village is not adequate looking to the cattle population and the ratio fixed by the State Government to be maintained for such purpose.
3. Few facts need to be noted at this stage.
4. As already noted, the petitioners are residents of village Zarpara. It is their case that respondent authorities illegally and unjustifiedly resumed 402 hectares 24 Are and 2 sq. mtrs.(1000 acres) of Gauchar land allotted to the Village Panchayat and decided to grant the same to respondent no.3 for the purpose of setting up of Special Economic Zone. It is the case of the petitioners that such resumption and ultimate allocation of land in favour of respondent no.3 is wholly illegal and unlawful. Gauchar land could not be diverted for any purpose other than for public purpose. In the present case, no public purpose is being served. It is the case of the petitioners that previously Village Panchayat had also opposed such proposal. However, after election of new Sarpanch and induction of Shri Dhanraj Gadhvi as Sarpanch, Panchayat adopted a resolution of 14.3.2007 in favour of resumption of Gauchar land by the State Government.
5. In Special Civil Application No.7254/2008 also same decisions and actions of the State Authorities are under challenge. This petition is also filed by the residents of village Zarpara in the nature of Public Interest Litigation. They claim that the petition is filed for and on behalf of the people of village Zarpara.
6. From the record of the petitions, we may trace important events leading to this litigation :
7. In December 2003, respondent no.3 made an application to the Collector Bhuj for allotment of land of village Zarpara for setting up of Special Economic Zone.
On 14.3.2007, Zarpara Village Panchayat adopted a unanimous resolution recording that respondent no.3 had demanded 1000 acres of land from out of survey no.689 for the purpose of setting up of Special Economic Zone and that the Panchayat agrees to allot such Gauchar land to the company.
On 12.9.2007, a resolution was passed by the Revenue Department to allot 402 hectares 24 Are and 2 sq. mtrs.(approx. 1000 acres) of village Zarpara to respondent no.3 on certain terms and conditions.
On 5.10.2007, the Collector, Bhuj directed respondent no.3 to deposit a sum of Rs.4,42,46,422/- at the rate of Rs.11/- per sq. mtr. for the land to be alloted and also directed to deposit further sums of Rs.1,32,73,927/- towards premium for the land at the rate of 30% and conversion tax of Rs.2,41,34,412/- at the rate of Rs.6/- per sq. mtr.
On 16.11.2007, the Collector, Kutch resumed said extent of land i.e. 402 hectares 24 Are and 2 sq. mtrs. under Section 108(4) of the Gujarat Panchayat Act.
On 19.11.2007, the Collector, Bhuj alloted said land in favour of respondent no.3.
8. On the basis of above facts and events, counsel for the parties have made detailed submissions before us.
9. At the outset, we may clarify that sole issue presented before us in these petitions and considered by us was with respect to validity of resumption of Gauchar land by the Collector and allotment thereof in favour of respondent no.3. Any other issue relating to environmental clearance or other challenge to setting up of Special Economic Zone in question was not the subject matter of these petitions. We have therefore, confined our scrutiny to only this aspect of the matter. If there is any other litigation pending or which may arise in future with respect to other related issues of setting up of Special Economic Zone, same shall be decided on the basis of material on record.
10. Learned counsel Shri A.J.Yagnik for the petitioners in both the petitions vehemently contended that the respondent authorities gravely erred in resuming Gauchar land alloted to the Village Panchayat without following proper procedure. He submitted that land was alloted to respondent no.3 before resumption and that therefore, entire action was illegal.
10.1 Counsel further submitted that looking to the cattle population of the village, decision to resume Gauchar land was wholly illegal and arbitrary. He submitted that the Government has prescribed a minimum ratio of Gauchar land to cattle population which in the present case was not maintained. Counsel submitted that decision of Gram Panchayat to agree to such resolution is also not free from doubt. It was only after the newly elected Sarpanch was inducted in the office that Panchayat adopted resolution in question. He submitted that such resolution was passed surreptitiously by the Sarpanch without following proper procedure. He submitted that in any case during pendency of these petitions, Gram Sabha which is a sovereign body so far as the village is concerned, had unanimously by resolution dated 11.9.2010 decided to oppose any such alienation of land. He drew our attention to provisions contained in Articles 243A and 243B of the Constitution to contend that Village Panchayat and Gram Sabha of village have been given special recognition and status through amendments in the Constitution.
10.2 Our attention was drawn decision of the Apex Court in case of State of Jharkhand and others v. Pakur Jagran Manch and others reported in (2011) 2 Supreme Court Cases 591, wherein the Apex Court was of the opinion that dereservation of Gauchar land should only be in exceptional circumstances and for valid reasons. It was further observed that when the Gauchar land is not a Government land but is village common land vesting in the villagers and not the Government, the consent of village headman and the villagers in whom the land vests shall have to be obtained before dereservation and diversion of use of gauchar land.
11. On the other hand, learned Government Pleader Shri Prakash Jani appearing for respondent no.1 and 2 opposed the petitions. Relying on the affidavit in reply and documents on record, he contended that land was alloted in favour of respondent no.3 after following proper procedure. He submitted that resumption of land preceded the allotment.
11.1 Learned Government Pleader further submitted that after ascertaining the cattle population of the village and after ensuring that proper ratio of cattle population to the available Gauchar land is maintained, Gauchar land was resumed that too with the consent of Village Panchayat.
11.2 Heavy reliance was placed on the decision of Division Bench of this Court in case of Shah Kantilal Depar and others v. Reliance Infrastructure Limited through Manager and others in Special Civil Application No. 12943/2006 and connected petitions decided on 25th to 29thMarch, 2006 to contend that setting up of a Special Economic Zone was considered by the Bench as public purpose.
12. Learned senior counsel Shri K.S. Nanavati appearing for respondent no.3 opposed the petitions contending that establishment of Special Economic Zones is a public purpose as held by this Court in case of Shah Kantilal Depar and others(supra). Pursuant to allotment of land, respondent no.3 has made huge investments to the tune of nearly 6600 crores.
12.1 Counsel contended that all procedures were followed before allotting the land to respondent no.3.
12.2 Reliance was placed on the decision in case of Panchayat Varga Sharmajivi Samudaik Sahakari Khedut Coop. Society and others v. Haribhai Mevabhai and others reported in (1996) 10 Supreme Court Cases 320, wherein it is observed as under :
“14. Economic empowerment of the poor, in particular the Schedule Castes and Scheduled Tribes, as is enjoined under Article 46, is a constitutional objective as basic human and fundamental right to enable the labourer, Scheduled Castes and Scheduled Tribes to raise their economic empowerment. When the appellant Society had requested for assignment of the wasteland vested in the Gram Panchayat, the Gram Panchayat undoubtedly passed a unanimous resolution requesting the Collector to resume the land for assignment to the appellant-society. Since, the Gram Panchayat as a representative body passed the resolution, it would be obvious that the elected members represent the interest of the Gram Panchayat for effecting the constitutional goal. When the Gram Panchayat in turn passed the resolution for the said, purpose, there was no obligation to issue notice to the villagers. That apart, the scheme of Section 96 is clear. The legislature is cognizant of the fact that when public road or street is sought to be discontinued or closed, public is likely to be effected, the Sarpanch or Chairman acting on behalf of Gram Panchayat etc. is enjoined by the proviso to subsection (2) of Section 96 to issue notice to them. It specifically enjoins the Sarpanch or the Chairman, as the case may be, to cause a notice to be issued in the prescribed manner, before passing a resolution so that the affected users would have an opportunity to put in their objections for consideration by the Gram Panchayat. But when the wasteland or open site or vacant land or grazing land vested in the state was sought to be resumed from the Gram Panchayat by the Collector for another laudable public purpose, then the silence of issuance of notice is eloquent. Requirement of hearing the villagers is not insisted. The legislature did not intend issuance of notice to villagers. It is contended for the State that in a case where the Gram Panchayat sought to pass a resolution requesting the Collector to resume the land in the possession and enjoyment of a person and when the resumption affects such a person, the issuance or prior notice to such affected person should be implicit, We need not go into that question since that question does not arise in this case. Under these circumstances, the view of the Government, learned single Judge and the Division Bench of the High Court for issuance of a notice to the villagers is clearly not warranted by the scheme of Section 96(4) of the Act.”
13. Having thus heard learned advocates for the parties, it emerges from the record that in response to request of respondent no.3 for allotment of land of village Zarpara for setting up of Special Economic Zone, after processing the application at various stages, the Revenue Department of Government of Gujarat resolved on 12.9.2007 to allot 402 hectares 24 Are and 2 sq. mtrs. area of land i.e. approximately 1000 acres of land to respondent no.3. On 5.10.2007, Collector, Bhuj required respondent no.3 to pay the land price with premium and conversion tax. On 16.11.2007, the Collector, Bhuj resumed such land, which was alloted to Panchayat for its Gauchar purpose, in exercise of power under Section 108 of Gujarat Panchayat Act. Collector, Bhuj passed an order dated 19.11.2007 allotting area of 402 hectares 24 Are and 2 sq. mtrs. of land in favour of respondent no.3 for setting up of Special Economic Zone.
14. Contention of the petitioners that allotment of land by the Collector preceded resumption thereof in the Government is thus not correct. It is of-course true that certain procedural steps in furtherance of ultimate order of allotment were taken prior to resumption of the land. We however, fail to see how such procedure would vitiate the allotment of land. It is not possible to dispute that the Collector resumed the land in the Government which was hitherto allotted to Panchayat for its Gauchar purpose on 16.11.2007. It was only thereafter, that Collector alloted the land in favour of respondent no.3 by passing an order on 19.11.2007.
15. On behalf of respondent no.3, certain documents have been produced along with affidavit to contend that proposal to surrender such land in favour of the Government was placed before Gram Sabha on 21.10.2006 and such proposal was unanimously accepted by the Gram Sabha. We however, need not go into this aspect since we find that undisputedly the proposal was approved by the Village Panchayat by a resolution dated 14.3.2007. Village Panchayat unanimously approved divesting of land in the Government. Despite the petitioners' objection to such resolution, we are unable to discard the same. As noted previously, case of the petitioners is that newly elected Sarpanch got the resolution passed without following proper procedure. We cannot accept this objection for variety of reasons. Firstly, validity of resolution has never been questioned either by the petitioners or anyone else, either previously or in this petition. Secondly, there is nothing on record to suggest that the resolution was not properly circulated and that proper procedure was not followed before Panchayat adopted such resolution. In that view of the matter, from the record it is established that the Gauchar land of the Panchayat was resumed by the Collector after the Panchayat agreed to such a proposal through a unanimously passed resolution. The alleged opposition by Gram Sabha to such divesting of land many years after its resumption and allotment and investment of huge funds by respondent no.3, in our view, cannot be a ground to reopen question of allotment of land.
16. Section 108 of the Panchayat Act 1993 pertains to vesting of certain land in Panchayat by the Government and reads as follows :
“108.Government may vest certain lands in panchayat.- (1) For the purpose of this Act, the State Government may subject to such conditions and restrictions as it may think fit to impose vest in a panchayat open sites, waste, vacant, or grazing lands or public roads, streets, bridges, ditches, dikes and fences, wells, river-beds, tanks, streams, lakes, nallas, canals, water-courses, trees or any other property in the village vesting in the Government.
(2) Subject to any conditions and restrictions imposed by the State Government under sub-section(1) and with the previous sanction of the Collector, a panchayat may discontinue or stop up any such public road or street vested in it by the State Government but which is no longer required as public road of street and may lease or sell any such land therefore used for the purposes of such public road or street:
Provided that one month before it is decided to stop up or discontinue such public road or street, the Sarpanch shall, by notice signed by him and affixed in the part of the public road or street which is proposed to be discontinued or stopped up, and published in such other manner as is prescribed, inform the residents of the village of the said proposal and consider any objections in writing made thereto. The notice shall indicate the alternative route, if any which it is proposed to provide or which may already be in existence.
(3) Whenever any public road or street or any part thereof has been so discontinued or stopped up, reasonable compensation shall be paid to every person who was entitled to use such road or street or part thereof, otherwise than as a mere member of the public, as a means of access to or from his property and has suffered damage from such discontinuance or stopping up, and the provisions in the Bombay Highway Act, 1955(Bom.LV of 1955) in relation to the assessment apportionment, and payment of compensation shall, mutatis mutandis, apply thereto as they apply in relation to the closure of a highway under section 52 of that Act.
(4) Where any open site or waste, vacant or grazing land vesting in Government,has been vested by Government in a panchayat whether before or after the commencement of this Act, then it shall be lawful for the State Government to resume at any time such site or land, if it is required by it for any public purpose:
Provided that in case of any improvement of such site or land made by the panchayat or any other person, the panchayat or person, as the case may be, shall be, entitled to compensation equal to the value of such improvement and such value shall be determined in accordance with the provisions of the Land Acquisition Act, 1894(I of 1894).”
In terms of Sub-section(4) of Section 108 of the Gujarat Panchayat Act, 1993, it is lawful for the State Government to resume any land including the grazing land vested by the Government in Panchayat, if it is required for any public purpose.
17. In the result, we are of the opinion that it cannot be stated that the land in question was allotted to respondent no.3 even before its resumption by the State. Such resumption was after village panchayat by a unanimous resolution agreed to the same and that village Gram Sabha cannot in facts of this case re-open such issue many years later. We may recall that Grampanchayat agreed to surrender the land by a resolution dated 12.9.2007. Collector thereupon resumed the land and thereafter allotted it to the respondent no.3 by order dated 19.11.2007. Gram Sabha in its meeting dated 11.9.2010 decided to oppose such allotment.
18. Now coming to the question of adequacy of Gauchar land at the command of Village Panchayat, we may refer to relevant Government resolutions.
Way back in the year 1954, Government issued a resolution dated 20.5.1954 stressing the need for preservation of Gauchar land and for putting them to optimum use. In the resolution, it was stated :
“4. Government has noticed that lands assigned for grazing are left entirely uncared for and that their full economic use is not possible unless adequate steps are taken to improve them. The Collectors are, therefore, requested to see that either the Village Panchayats or the local panchas etc. take steps to fence the lands, to grow proper types of grasses, to provide for rotational grazing etc. in consultation with the District Agricultural Officer, Gram Sevaks, etc. If necessary,the Collectors may put up proposals for levying for small grazing fees for this purpose.”
The Government issued circular dated 30.12.1988 reiterating that as per Government standards per 100 cattle, 40 acres(16 hectares) of Gauchar land is required to be maintained, so that village cattle can be properly looked after. However, the Government is empowered to resume even the Gauchar land for any public purpose because such resumption of land ultimately benefits village people also. The circular further, provided that wherever, available Gauchar land is less than the prescribed standards, in such cases, Gauchar land should not be utilised for any other purpose and that in exceptional cases only, when such land is required for public purpose, procedure for resumption of land should be undertaken. Even in such cases, if there is opposition from the local self governing bodies, as far as possible, procedure for resumption of such land should be avoided unless opposition is found to be baseless.
This circular is significant for two purposes. Firstly, it refers to ratio of village cattle to the Gauchar land to be maintained as far as possible. It also though while recognizing the Government's power to resume Gauchar land for any public purpose, refers to consultation with the Village Panchayat while resuming the Gauchar land in case where minimum ratio is not maintained.
19. In view of above resolutions/circulars, it is necessary to ascertain whether while resuming Gauchar land of village Zarpara, requisite ratio was preserved.
20. Learned counsel Shri A.J. Yagnik for the petitioners placed on record and relied upon the statement of cattle population in different village in Mundra Taluka issued by the Taluka Development Officer. According to which statement, village Zarpara had total of 9089 animals which included 4477 cows and 4396 buffaloes in the year 2007-2008. As against number of cattle, available Gauchar land before resumption was 2840 acres and after resumption, area of Gauchar land remaining with Village Panchayat is 1840 acres. He therefore, submitted that necessary ratio is not maintained.
21. On the other hand, learned Government Pleader Shri P.K. Jani relying on other documents on record, contended that proper ratio is maintained. He pointed out that before resumption of land in question, Zarpara Panchayat had a total of 2840 acres of land at its disposal. After resumption of about 1000 acres of land, Zarpara Village Panchayat has remainder of 1840 acres of Gauchar land which is presently still available.
21.1 He drew our attention to details of available Gauchar land and the cattle population at the relevant time in the village, in para.10 of the affidavit dated 27.2.2009 filed by Shri A.R. Bhojani, Mamlatdar, Mundra District, which reads as under :
“10. With respect to paragraphs 4 & 5 of the petition, I deny the contents thereof. I deny that the Mamlatdar and the Deputy Collector submitted their recommendations on non-existent facts as alleged or for the reasons alleged. I say that every five years cattle of every member village are being counted in a census and in the last census carried out in the year 2003-04, total number of cattle in the Village Jarpara was 3543 consisting of 1337 Cows and 2210 Buffalos. I submit that as per the Government norms, for 100 cattle there should be 40 acres of Gaucher land. Therefore for 3543 cattles, 1418 acres of land required. As against total Acres 2840.26 gunthas was available and therefore land admeasuring Acres 1422.26 gunthas was in excess. In the circumstances, the respondents have allotted 1000 acres of land to respondent no.3 company. I submit that even after the said allotment also, 400 acres of land is still in excess. Therefore, there is no lack of Gaucher land in the Village Jarpara and therefore the objections raised by the petitioners are baseless and without any merits.”
21.2 Reliance was placed on affidavit dated 23.12.2010 filed by Shri Y.B.Zala, Mamlatdar, Mundra District, along with which Government Resolutions for maintaining of Gauchar land with the Village Panchayat have been produced. In the said affidavit it is stated that in village Zarpara, number of cattle for calculating requirement of Gauchar land was 3543. As per the record in the year 1984, total Gauchar land available with the Gram Panchayat was 2840.26 acres. After allotment of 1000 acres of land for Special Economic Zone, remaining Gauchar land available would be 1840.26 acres. It is further stated that though as per the communication of Taluka Panchayat, Mundra dated 4.4.2006, total number of cattle in village were 5639, however, as per Government Resolution dated 14.11.1950 for the purpose of maintenance of Gauchar land, only cows, buffaloes and its progenies were to be counted and that therefore, for such purpose cattle population was counted as 3543.
22. From the above discussions, it can be seen that there is controversy regarding number of cattle in village Zarpara when the Collector decided to resume the Gauchar land admeasuring 1000 acres for the purpose of granting to respondent no.3 for setting up Special Economic Zone. Such controversy is required to be resolved from available documents on record. In Government Resolution dated 14.11.1950, produced along with above-referred affidavit dated 23.12.2010 of Shri Y.B.Zala, it is provided that :
“(ii)While fixing the area to be assigned for grazing in each village only the following cattle should be taken into account :-
(a) Cows, bulls, bullocks, he-buffaloes, she-buffaloes, donkeys and ponies provided that they are useful for breeding, milching, agricultural operations and other useful work connected with agricultural operations.
(b) Calves as defined in the 'Comments' below Village Form XV in the Revenue Accounts Manual.
(iii) All useless cattle, sheep, goats, cattle belonging to professional grazers or professional cattle breeders or commercial dairies and cattle used for business purposes e.g. ponies exclusively used for tongas plying for hire, bullocks, exclusively used for carts plying for hire, should not be taken into account for the purpose of assigning lands for free grazing in a village.”
22.1 In Government Resolution dated 20.5.1954, it was provided that standard average of grazing area should be fixed at 40 acres per 100 cattle. We may also notice that under Government Resolution dated 27.1.1999, Government provided that whenever Gauchar land is being resumed for industrial purpose, on the basic market price of land, 30% thereof should be collected by way of premium and such amount shall be made available to the Gram Panchayat for improvement of Gauchar land. Such amount shall be transferred to Taluka Panchayat from where it can be utilised by Gram Panchayat for the purchase of land for Gauchar and the ownership thereof will be of the Gram Panchayat. In the said resolution it is further provided that in case where Gauchar land is being resumed, land to the same extent out of Government wasteland, if possible should be allotted to Village Panchayat. In such case, premium collected from the industry would be retained by the Government.
22.2 From the resolution dated 22.11.2004, it can be seen that though previously resolution dated 27.1.1999 was placed in abeyance, such suspension of resolution was withdrawn.
22.3 It can thus be seen that Collector, Kutch after following proper procedure and taking into account the cattle population in village and the available Gauchar land found that there was excess Gauchar land as per ratio laid down by the Government Resolutions.
22.4 Though total cattle population may have been higher as is being pointed out by the petitioners from the statement issued by Taluka Development Officers, not all the cattle in the village are to be counted for the purpose of maintaining minimum Gauchar land. From the affidavits filed by the State agencies and resolutions produced along with such affidavits, it emerges that useless cattle, cattle belonging to professional grazers or professional cattle breeders or commercial diaries and cattle used for business purposes, should not be taken into account for the purpose of maintaining minimum area of Gauchar land. Accordingly, at the relevant time cattle population in village i.e. cows and buffaloes was put at 3543. Counting 100 acres per 40 cattle. Remaining area of 1840.26 acres of Gauchar land was found adequate. We do not find any infirmity in such calculation. The petitioners have not been able to demonstrate that in view of Government Resolution dated 14.11.1950, the calculation of cattle population by the State Authority was incorrect or that considering such figures, remaining Gauchar land of 1840.26 acres would not meet the ratio of 100 acres of land per 40 cattles.
23. We may however, recall that as per resolution dated 27.1.1999, while resuming Gauchar land for industrial purpose, it is envisaged that 30% of the market rate will be collected by way of premium. Government should if possible allot similar area of land out of Government waste land to the Village Panchayat for Gauchar and if such Government wasteland is not available, the premium collected should be placed at the disposal of the Village Panchayat through Taluka Panchayat for acquisition of land for Gauchar.
24. We are sure State authorities would be cognizant of the provisions contained in said Government Resolution dated 27.1.1999 and would take appropriate steps in terms of such provisions. Present petition however, is not aimed at directing the Government to allot Gauchar land to the Village Panchayat from out of its wasteland available. No direction in this regard therefore, can be granted. However, we recommend that State Government shall examine whether out of wasteland available with the Government, area to the extent of Gauchar land resumed from the Panchayat, could be allotted to Zarpara Gram Panchayat. However, insofar as challenge of the petitioners to the resumption of Gauchar land to the Panchayat and allotment thereof to respondent no.3 is concerned, same fails.
25. In the result, subject to above observations, the petitions are disposed of.