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Judgment
Challenge in this letters patent appeal under clause-15 of the Letters Patent filed by original respondent No.5 in the writ-petition is to the judgment
dated 1.3.2017 passed by learned Single Judge in Special Civil Application No. 13896 of 2004 whereby, learned Single Judge allowed the petition by
setting aside the order dated 27/29.9.2004 passed by original respondent No.1 State authority in Revision Application No.68 of 2003 as well as order
dated 30.7.2004 passed by original respondent No.2 Collector, Banaskantha and confirmed the order dated 26.2.2002 passed by Deputy Collector
allotting the land admeasuring 7 Acres at Mouje-Vaghrol, Tal. Dantiwada out of Survey No. 100/4 and 1 Acre out of Survey No. 100/3, i.e. 8 Acres
of land at Mouje-Vaghrol.
2.The facts reveal that due and legitimate allotment of 7 Acres of land at Mouje- Vaghrol, Tal. Dantiwada out of Survey No. 100/4 and 1 Acre out of
Survey No. 100/3, i.e. 8 Acres of land at Mouje-Vaghrol to ex- army man is opposed by Gram Panchayat on the ground that the land as above allotted
to ex- army man for the purpose of agriculture is required for expansion and development of gamtal land. As per the policy circular dated 15.2.1989
issued by Government of Gujarat, above land was allotted on 26th February, 2002 upon rendering service by the original petitioner in the Indian Army
from 1986 to 2001.
Certain facts, which came to be noticed by learned Single Judge in paras 3, 3.1 to 3.5 to which there is no dispute, are reproduced hereunder.
“3. So far as the factual background is concerned, it has emerged from the record that the petitioner, after serving Indian Army from 1986 of 2001,
sought retirement. Thereafter in light of the policy decision of the State Government (vide circular dated 15.2.1989) he submitted an application to the
competent authority for allotment of land. The said circular dated 15.2.1989 declares the government policy to allot land to exarmy man for purpose of
agriculture. The policy, vide clause No.2(18), also provides for priority in matter of allotment of land to ex-army man. 3.1 After receiving the
application from present petitioner, the competent authority called for report from Mamlatdar.
3.2 The Mamlatdar visited the place and collected relevant details related to the land in respect of which the application was made.
3.3 The Mamlatdar submitted report that the parcel of land is government waste land and any demand from the panchayat in respect of the said land
for any purpose is not received and sufficient land is available for expansion of ‘gamtal’ and that, therefore, there is nothing objectionable in
allotment of identified the land to the petitioner.
3.4 The competent authority considered the said report by the Mamlatdar and after taking into account the relevant facts and circumstances as well as
the Mamlatdar’s report and the application by present petitioner and the policy declared vide circular dated 15.2.1989, passed order dated
26.2.2002 and allotted the land admeasuring 7 acres at Mouje: Vaghrol, Taluka: Dantiwada, out of Survey No.100/4 and 1 acre, out of Survey
No.100/3, I.e. 8 acres of land at Mouje: Vaghrol.
3.5 By virtue of the said order dated 26.2.2002, the petitioner was obliged to pay price fixed by the Government. It is not in dispute that the petitioner
paid the price.â€
Learned Single Judge also referred to certain specific averments made in the writ-petition; orders passed by the authorities below, viz. Deputy
Collector on 26.2.2002 whereby initial allotment was made to the original petitionerâ€"ex-armyman; orders passed by District Collector and the
appellate authority on 8.8.2003 cancelling the above order passed by the Deputy Collector with clarification that proper procedure for allotment of
alternative land be undertaken by the authority and remanding the matter to Deputy Collector for taking decision afresh; Revision Application No. 68
of 2003 preferred before the Additional Secretary, Revenue Department (Appeals) which came to be rejected on 27.9.2004, and recorded the facts
and submissions of learned advocates appearing for the parties. The learned Single Judge also referred to Regular Civil Suit No. 268 of 2003 pending
with regard to disputed land, order passed below exh.5 which was carried in Civil Misc. Appeal No. 23 of 2003, observations made in the above order,
basis of objection raised by the Panchayat against the allotment of land which was based on only consideration of requirement of the very land for
expansion or development or would cause difficulty in the use of gamtal. In the past, viz. in 1990-2002, no expansion or development has ever taken
place and at the top of the above, the land in question was not Panchayat land but was govt. waste land.
That service rendered by ex-armyman for about 15 years and policy decision taken by the competent authority upon circular issued by the
Government of Gujarat dated 15.2.1989 was found to be in accordance with law; therefore, the learned Single Judge allowed the writ-petition by
quashing and setting aside the order dated 27/29.9.2004 passed byrespondent No.1 in Revision Application No. 63 of 2003 as well as the order dated
30th July, 2004 passed by respondent No.2, viz.
District Collector and the appellate authority, and restored the original order dated 26.2.2002 passed by the Deputy Collector allotting land to
respondent No.5- original petitioner â€" ex-armyman).
5.Before us, learned advocate for the appellant- original respondent No.5 raised manifold contentions. It is submitted that the writ-petitioner has failed
to establish his case before the two authorities, viz. District Collector, i.e. appellate authority and revisional authority and both the authorities had
assigned cogent reasons for setting aside the original order of allotment passed by Deputy Collector whereby, certain procedure was not followed. In
addition to the above, another land for allotment to ex- armyman was available and it could have been allotted to ex-armyman. The land in the vicinity
of Gram Panchayat and used as Gamtal land, which was required for future expansion and development, ought not to have been allotted to ex-
armyman. It is submitted that though it was govt. land and allotment and usage thereof to be permitted was with the govt. authority, but at the same
time, villagers of village Vaghrol were in use of the land for years together and at least, before allotment of the land as such, Village Panchayat ought
to have been heard and therefore also allotment of land in question was illegal so held by the appellate as well as revisional authority, and ought not to
have been interfered by the learned Single Judge in exercise of power under Article 226 of the Constitution of India. At least, opinion of the Gram
Panchayat ought to have been obtained by Deputy Collector before allotment of land and policy circular of allotment of land to ex-armyman ought not
to have been applied mechanically since the circular provided certain procedure to be followed. It is therefore, submitted that the order of the learned
Single Judge deserves to be quashed and set aside.
Upon consideration of the submissions as above and the grounds of appeal in the context of challenge to oral judgment rendered by learned Single
Judge in the writ-petition, we have not been persuaded by either of the submissions, inasmuch as cogent and convincing reasons are assigned by
learned Single Judge for not accepting the case of the Gram Panchayat to which we have already made reference in earlier paragraph. But at the
same time, on a careful perusal of the record of the appeal, which contains initial order of allotment, order passed in appeal and revision and the
pleadings in the writ-petition, we are of the view that ex- armyman-original petitioner retired after rendering 15 years of service in the Indian Army
and upon an application submitted as early as on 11.1.2002 to Mamlatdar for allotment of land, it came to be allotted by the Deputy Collector since it
was the land owned and vested in the government. Nothing was found in the report submitted by Mamlatdar before allotment of the land. Since the
land belonged to the government, as such, Gram Panchayat had no say except that the land was required for future expansion or development or for
other purpose by villagers. No development has taken place from 1990 to 2017 on the said waste land. Besides, efforts made to cultivate the land by
ex-armyman which had come on record of the Gram Panchayat,as such, have nothing to do with civil proceedings pending before the Civil Court.
After about 17 years of allotment of land, the respondent No.5-ex-armyman is to be allowed to enjoy possession free from any interference from
any corner and concerned authorities shall see to it that no such hindrance is ever caused in the usage of the land allotted to respondent No.5.
In the absence of merit, the appeal fails and the same is accordingly dismissed.