Prahladbhai Shivrambhai Patel vs State of Gujarat and 3

Hon''ble Smt. Justice Abhilasha Kumari

1.This petition, under Article 226 of the Constitution of India, has been preferred with the following prayers:

(A) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction directing the respondent authorities to investigate into the matter as to how the government waste land being Revenue Survey No. 976 and 1107 in Ganeshpura (Tarabh) village, Tal. Visnagar, Dist. Mehsana, which was shown as gaucher land upto 2004 in revenue record is converted into private land and further be pleased to restrain the authorities from recording transfer or alienate the land being Revenue Survey No. 976 and 1107 in Ganeshpura (Tarabh) village, Tal. Visnagar, Dist. Mehsana question;

(B) Pending admission, hearing and final disposal of this Writ petition, Your Lordships may be pleased to direct the respondent authorities to restrain the authorities from recording transfer or alienate the land being Revenue Survey No. 976 and 1107 in Ganeshpura (Tarabh) village, Tal. Visnagar, Dist. Mehsana question;

(C) Be pleased to pass such other and further reliefs as may be deemed just and proper by Your Lordships in the facts and circumstances of the case.

The facts of the case, as emerging from the memorandum of the petition, are that the petitioner is an agriculturist who makes two ends meet by farming and cattle rearing. According to the petitioner, he and other villagers were grazing their cattle in the Gauchar land bearing Survey Nos. 1107 and 976, admeasuring 3-81-72 square metres and 2-65-29 square metres, respectively, registered at Account No. 112, situated in the periphery of village Ganeshpura (Tarabh). It is the case of the petitioner that upto the year 2004, this land was shown as "Government Waste Gauchar" in the revenue records and the village people used to graze their cattle thereupon. However, on verifying the record, it was found that Entry No. 664 for Revenue Survey No. 1107, and Entry No. 934 for Revenue Survey No. 976, had been mutated, by virtue of which, the names of Patel Ramchand Kuber, Mulchand Talja, Bechar Javra, Haribhai Kalubhai, Hirabhai Dayalji, Chatur Valabhai and Haribhai Revabhai, were shown with the remarks that "the said land was continuously waste land and before 20 years along with Raichand Kuber has been purchased in partnership in an auction". According to the petitioner, the said Ramchand Kuberbhai Patel was the then Mukhi of Ganeshpura village who, in collusion with the Talati-cum-Mantri, got his name inserted in the revenue record for land bearing Survey Nos.1107 and 976, by way of Entries Nos.664 and 934 respectively. It is the case of the petitioner that the heirs of said Ramchand Kuberbhai restrained the villagers from entering upon the land and grazing their cattle. Representations were made to the Collector and Deputy Collector (respondents Nos.2 and 3) respectively, to take appropriate action in the matter, but none was taken. The petitioner issued a legal notice to the authorities, asking them to make inquiries and take action in the matter as, according to him, Government Waste Gauchar land has been wrongly converted into private land. The petitioner has also filed a criminal complaint against the alleged encroachers. Under these circumstances, the petitioner has approached this Court by making the prayers reproduced hereinabove.

Mr. Dakshesh B. Mehta, learned advocate for the petitioner, has submitted that the petitioner has a right to graze his cattle on the waste Gauchar land. That, the land was entered as Waste Gauchar land of the State Government upto the year 2004 in the revenue records, and it is only due to the collusion of the then Talati-cum-Mantri that the name of the then Mukhi of the village has been inserted in the revenue records, whereby Government land has been wrongly appropriated by a private party. That the petitioner and other villagers have been deprived of their right to graze cattle on the Government waste land that was being used as Gauchar land, and in spite of strenuous efforts on the part of the petitioner, the authorities have not paid any heed; therefore, the Court may grant the prayers made by the petitioner.

Ms.Nisha M.Thakore, learned Assistant Government Pleader, has strongly opposed the prayers made by the petitioner by submitting that the land in question was never Gauchar land and a wrong statement in this regard has been made by the petitioner. In support of this submission, the learned Assistant Government Pleader has drawn the attention of the Court to a copy of Form-1 of the year 1917-1918, annexed as Annexure-RI to the affidavit-in-reply filed by respondent No. 2. It is further submitted that the land in question was sold in auction to Ramchand Kuberbhai, Mulchand Talija, Bechar Javra, Haribhai Kalubhai, Hirabhai Dayalji, Chatur Valabhai and Haribhai Revabhai somewhere in the year 1930 and thereafter their names have been inserted in the revenue record. The learned Assistant Government Pleader has supported this submission by pointing out the copies of Village Form No. 7/12 from the year 1952 to 1998, annexed as Annexure-RII collectively, to the affidavit-in-reply. It is further contended by the learned Assistant Government Pleader that the entries in favour of the persons to whom the land has been sold in auction have never been challenged in any proceedings by the petitioner. That, as the land was never Gauchar land, the petitioner has no right to graze cattle thereupon. It is further submitted that the petitioner was well aware of the auction sale and the entries pertaining to the auction, but did not raise any objection at the relevant point of time, therefore, the prayers made in the petition may not be granted, and the petition be dismissed.

I have heard the learned counsel for the respective parties, perused the averments made in the petition, the affidavit-in-reply filed by respondent No. 2, the rejoinder filed by the petitioner, as well as other documents on record.

The material on record, in the form of a copy of Form-I of the year 1917- 1918, annexed to the affidavit-in-reply filed by respondent No. 2 makes it abundantly clear that the land is Government Waste land and not Gauchar land as stated by the petitioner. The documents on record further reveal that the land in question was sold in auction to the persons mentioned hereinabove, whose names are shown in the revenue record. The copies of Village Form No. 7/12 from the year 1952 to 1998, annexed as Annexure-RII collectively to the affidavit-in-reply filed by respondent No. 2, clearly mention this aspect. In view of the documentary evidence on record, that the land was never Gauchar land, and has been sold by auction somewhere in the year 1930, the very premise on which the case of the petitioner rests would collapse. Significantly, no material to the contrary has been placed on record by the petitioner. As the land in question was never Gauchar land, the petitioner cannot have grazing rights upon the same. Further, the auction-sale of the land has never been challenged by the petitioner at any point of time. The persons to whom the land has been sold have become the owners thereof, and their rights of ownership qua the land in question cannot be restricted in a manner that is being prayed for by the petitioner.

The petitioner has failed to show any legal or vested right upon the land in question. Further, as no legal, fundamental or indefeasible right of the petitioner has been violated, the petition, being devoid of merit, deserves to be rejected. For the reasons stated hereinabove, the petition is rejected. Notice is discharged.