It is trite to say that gouchar land can be
used only for purposes for which it is permitted
to be used. If there is a user contrary to the
permissible user, whether by the State or by any
third party, the same cannot go on.
Rehabilitation of persons is really not required
in the present case as only three persons are
entitled to an alternative site as per rules.
There is of course some dispute whether the
encroachers have made permanent structures or
kuchha construction for keeping cattle but be
that as it may, the user cannot be contrary to
what is being permitted for gouchar land, which is
a grazing land.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5135 OF 2021
RAMESHBHAI VIRABHAI CHAUDHARI Vs THE STATE OF GUJARAT
Citation: SEPTEMBER 06, 2021.
Leave granted.
The appellant seeks to assail the order
dated 12.04.2019 passed by the Division Bench of
the Gujarat High Court on a public interest
litigation filed under Article 226 of the
Constitution of India seeking removal of
unauthorized encroachment on the gauchar land of
Village Bhandu (Laxmipura),Taluka: Visnagar,
District: Mehsana, belonging to Gram
panchayat/Government. The petition was dismissed
after obtaining affidavit in reply predicated on
a reasoning that all the people who are
unauthorizedly occupying are from the low income
strata of society and are residing there since
number of years and thus it would not be
appropriate to direct their immediate removal
unless alternative accommodation is provided to
them by the State and its authorities in
accordance with its policy.
On notice being issued, counter affidavit
has been filed by respondent No. 6, Sarpanch of
the Panchayat. No doubt a preliminary submission
has been raised that even the brother of the
appellant is one of the persons who has encroached
in the gouchar Land but then that only implies
that he has to be treated at par with anybody else
who may have encroached.
In our view, what is material is that on
survey being conducted, 72 persons have been found
to have made encroachment in the gouchar land
being Survey Nos in question bearing Nos. 1938/1,
198/2 and 1939. Out of these persons, 3 persons
are included in scheduled caste category and the 2
persons are Socially Economically Backward Class.
The Scheduled caste persons concerned are stated
to have already got benefit of another Government
Scheme namely, Amedkar Aavas Yojana. The other
encroachers are having residential houses at
other places along with agricultural lands
adjacent thereto and are thus not entitled to get
any alternative accommodation. The land in
question is being used for making shelters for
their cattle and not being used for residential
purposes. In fact on 07.08.2019, 29 persons are
stated to have made a statement that they were
keeping cattle on the land while other persons did
not appear. Thus only three persons are entitled
to the alternative accommodation as stated above.
Out of these, one person is stated to be doing
ritualistic puja called Pujari and other two
persons are stated to be under SEBC category and
also coming under poverty line.
In respect of user of the gouchar land it
is stated that Government is running Anganvadi,
school in the said premises. One cooperative
society is running dairy and there is one temple
of Hanumanji.
It is trite to say that gouchar land can be
used only for purposes for which it is permitted
to be used. If there is a user contrary to the
permissible user, whether by the State or by any
third party, the same cannot go on.
Rehabilitation of persons is really not required
in the present case as only three persons are
entitled to an alternative site as per rules.
There is of course some dispute whether the
encroachers have made permanent structures or
kuchha construction for keeping cattle but be
that as it may, the user cannot be contrary to
what is being permitted for gouchar land, which is
a grazing land.
In view of the aforesaid, a direction is
issued to bring the land in conformity with its
use by the State Government taking appropriate
action within a maximum period of three months
from today.
The impugned order is set aside with the
direction aforesaid and the appeal is,
accordingly, allowed.
The parties to bear their own costs.
The Compliance report be filed by the State
Government within two weeks thereafter, to be
verified by the Registrar of this Court.
....................J.
[SANJAY KISHAN KAUL]
...................J.
[M.M. SUNDRESH]
NEW DELHI,
SEPTEMBER 06, 2021.
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