Bombay High Court
Pandurang Bapu Khavare vs State Of Maharashtra And Ors on 8 March, 2017
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
PUBLIC INTEREST LITIGATION NO. 10 OF 2016
Pandurang Bapu Khavare )
Age:50 years, Occu. Farmer. )
Residing at Post Chikhalwadi, Tal-Shirala, )
dist- Sangli. )...Petitioner
Versus
1.State Of Maharashtra )
1.a Through its Chief Secretary )
1.b Through its Principal Secretary, UD )
1.c Through its Principal Secretary, )
Water resources )
1.d Through its Principal Secretary, )
Revenue Dept. )
All having office at Mantralaya, Mumbai-32 )
)
2. The Collector, at Sangli, Dist.Sangli )
3. The Tehsildar, Taluka Shirala, Dist.Sangli ) ...Respondents
---
Ms.Radhika Samant i/b. Mr.Pradeep Havnur, for the Petitioner.
Ms.S.S.Bhende, AGP for the State-Respondents.
---
CORAM :- DR. MANJULA CHELLUR, C.J., &
G. S. KULKARNI, J.
RESERVED ON:- FEBRUARY 1, 2017
PRONOUNCED ON :- MARCH 8, 2017
----
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JUDGMENT : (Per G.S.Kulkarni, J.)
1. The Petitioner who is a farmer by occupation has filed this
Public Interest Litigation interalia seeking a direction against State
authorities praying that the land new Gut No.38 and 39 at
Chikhalwadi, Taluka Shirala, District Sangli (for short 'the said land'),
be permitted to be used as 'Gairan' (land for grazing of cattle) as also
water pond situated therein be permitted to be used for the purpose of
drinking water for the cattle for common use by the villagers. The
Petitioner seeks a further direction that any illegal ploughing by
unknown persons on the said land be prohibited.
2. The case of the petitioner is that the land in question was
initially owned by one Ramchandra Dattatray Garware who had gifted
the said land to the villagers for grazing of cattle. It is stated that in
pursuance thereto names of the village panchas came to be recorded
in the revenue records in the column of "other rights", which indicate
that they were representatives of the villagers. It is stated that out of
these persons four persons are deceased. The petitioner contends that
since last more than 100 years, the said land is used by the villagers
for grazing of cattle as also the water pond in the land is used for the
village cattle. It is contended that the land revenue for the said land
was paid by the villagers. The Petitioner refers one of the proceedings
under Section 32(G) of the Bombay Tenancy and Agricultural Lands
Act, 1948 (for short "the BTAL Act") by a person interested in the
land, initiated for recording his name as a tenant, whereupon an
inquiry was undertaken by Mahalkari and it was found that no crops
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are taken in the said land and the said land is used for grazing of
cattle and the proceedings came to be dropped by an order dated 18
June 1963. It is stated that this order supports the contention of the
petitioner that the land is used for grazing of cattle by the villagers
and thus belongs to the villagers. It is then contended that recently
certain unknown persons started visiting the land and carrying out
certain activities in a corner of the land. The petitioner accordingly
made inquiries and learnt that the legal heirs of the aforesaid four
persons whose names are recorded in the revenue records are in the
process of selling the land. The petitioner therefore has serious
apprehension that the land would be sold and the villagers would be
deprived of its use for grazing of the village cattle being used since
last 100 years. In support of this contention, the petitioner has relied
on the decision of the Supreme Court in the case "Jagpal Singh &
Ors. Vs. State of Punjab and Ors."1
3. The Respondent - State had appeared as also has filed a
reply affidavit of the Tahsildar, Shirala, to oppose the prayers as made
in this public interest litigation. On behalf of the State, it is denied
that the land in question was gifted by Mr.Ramchandra Dattatraya
Garware, to the villagers of Chikhalwadi for grazing cattle, and that
the names of the village management panchas were therefore
recorded in the revenue record in the 'other rights' column. It is also
denied that the land revenue was paid by the villagers by taking
contribution from the villagers. The Petitioner's contention that as per
1 (2011)11 SCC 396
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the revenue record, Mutation Entry no.2791 (dated 22 August 1948),
names of Mr.Ramchandra Dattatraya Garware, Mr.Digambar
Dattatraya Thakar and Mr.Shankar Dattatraya Thakar were mentioned
as owners and names of Mr.Ganu Tuka Watharkar, Mr.Ishwara Bhau
Sawant, Mr.Krishna Babaji Sawant and Mr.Hari Lakuba Sawant were
recorded as 'protected tenants' of the said land in the 'other rights'
column, is also denied. The State has placed these revenue extracts
on record. It is stated that as noticed from the revenue records, even
prior to 22 August 1948 the names of these four persons have been
recorded as 'protected tenants' under the 'other rights' column. It is
stated that in a reasoned order dated 11 April 2012 the competent
authority under the BTAL Act has decided an application under
Section 70(b) that the legal heirs of the said four persons namely
Mr.Ganu Tuka Watharkar, Mr.Ishwara Bhau Sawant, Mr.Krishna Babaji
Sawant and Mr.Hari Lakuba Sawant are protected tenants of the land
in question. It is stated that thereafter, by an order dated 17
December 2012 passed by the Tahsildar and Land Tribunal, Shirala
under Section 32G of the BTAL Act, declaring that the legal heirs of
the protected tenants have purchased this land from Mr.Ramchandra
Dattatraya Garware, one of the co-owners of the lands in question.
The reply affidavit further states that on 27 December 2012 the
Tahsildar and the Land Tribunal, Shirala issued a certificate under
Section 32M of the BTAL Act to the legal heirs of the said protected
tenants, that legal heirs of the protected tenants have become the
owners of the land in question. The affidavit also points out that
against the order dated 17 December 2012 passed by the Competent
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Authority under Section 32G, the aggrieved party had filed an appeal
before the Sub-Divisional officer, Walwa Division Islampur. By an
order dated 16 July 2016, the Appellate Authority rejected the appeal
and confirmed the order dated 17 December 2012 passed by Tahsildar
and Land Tribunal, Shirala. It is further stated that thereafter an
application came to be made by the legal heirs of protected tenants to
the Sub-Divisional Officer, Walwa, Taluka Islampur who passed an
order dated 24 November 2014 under Section 43 of the BTAL Act
thereby granting permission to sell the said lands. It is stated that in
pursuance of the said order (dated 24 November 2014), the names of
the purchasers of the land as mentioned in the order have been
entered in the revenue record. It is thus contended that the land in
question is a "private land" and not the "gairan land" and that the
owners of the land in question can thus deal and dispose of the land
in question in accordance with law. It is submitted that the decision of
the Supreme Court in Jagpal Singh & Ors. Vs. State of Punjab and Ors.
(supra) would not be applicable in the facts of the case.
4. Learned Counsel for the Petitioner and the learned
Assistant Government Pleader on behalf of the Respondents have
supported their respective contentions on the basis of the pleadings as
we have noted above. Having heard the learned Counsel for the
parties, we are not persuaded to accept the contention of the
petitioner that the land in question is "gairan" (land for grazing of
cattle by the villagers.). The various orders as placed on record on
behalf of the State indicates that the names of the private persons are
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recorded in the revenue records. Further the State has pointed out
certain orders, whereby permission to sell certain portion of the land
was given by the appropriate authority. All this would go to show that
the land in question is not of the ownership of village panchayat so
that they can assert a legal rights to be freely used by the villagers. It
may be that a portion of land was used for the purpose of grazing or
the water pond in the land was used for providing drinking water for
the cattle, however, these factors cannot affect the ownership of the
land, so as to permit the petitioner to contend or assert any legal
rights of villagers to use the land for grazing of cattle. In any case, if
any easementary or any other legal rights as asserted by the Petitioner
are created in favour of the villagers or any other persons, it is for the
petitioner or for these persons to assert these legal rights before
appropriate forum by leading evidence. This inquiry cannot be
undertaken in exercise of jurisdiction under Article 226 of the
Constitution of India in a Public Interest Litigation.
5. In view of the above clear facts, the decision of the
Supreme Court in the case Jagpal Singh & Ors. Vs. State of Punjab
and Ors.(supra) would not assist the petitioner, inasmuch as the said
decision concerned with the encroachment on land, which was
admittedly a Grampanchayat land. In this case the revenue record
indicates that the land does not belong to Grampanchayat but is of
private ownership. This is also not a case of any encroachment on the
gram-panchayat land. The revenue record clearly indicates names of
private persons.
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6. Resultantly, we see no merit in the Public Interest
Litigation and it is accordingly dismissed. We, however, clarify that the
Petitioner is free to adopt any other remedy to assert the ownership
and title of the villagers in respect of the land in question, in
appropriate proceedings.
(G. S. KULKARNI, J.) (CHIEF JUSTICE)
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