Petitioner challenged rejection of mining lease execution on grazing land. Court held State right to decline lease after Jagpal Singh direction to restore common lands, rejecting reliance on contrary state order.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10845 OF 2012
Shri Vijay Jyotiram Sawant ..Petitioner Versus State of Maharashtra and others. ..Respondents
Mr. G.S. Godbole, i/b. Mr. Sushant Prabhune, for the Petitioner.
Ms. S.s. Bhende, AGP, for Respondent Nos.1 to 4.
CORAM : A.S. OKA, AND A. S. CHANDURKAR, JJ. DATE : 22nd JULY, 2014
P.C.
bearing Gat No.111 which totally admeasures 73 Hectares 60 Ares at Songirwadi, Taluka – Wai, District –
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Satara. On 1st February, 1999, a mining lease was granted to the petitioner by the Collector in relation to a plot of land admeasuring 40 Ares out of Gat No.111. In addition, a plot of land admeasuring 40 Ares was granted for installing a crusher. The mining/quarrying lease was granted under the provisions of the Bombay Minor Mineral Extraction Rules, 1955 (for short, “the said Rules”). Initially, the mining lease was upto the period ending on 31st January, 2004. On 1st September, 2004, the Collector granted the mining lease to the petitioner in relation to the same land for the period from 1st September, 2004 to 31st April, 2009. The petitioner is relying on the order dated 17th June, 2011 passed by the Collector by which a fresh mining lease for a period of five years has been ordered to be granted to the petitioner.
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Court directed the State Government to decide the representation dated 5th December, 2011 made by the petitioner. In the said representation, it was pointed out that similarly placed persons have been granted mining lease. It was pointed out that the petitioner has invested a substantial amount in the business and has borrowed a large amount. In terms of the said order of this Court, the petitioner was heard and by an order dated 22nd October, 2012, the representation of the petitioner was rejected. The State Government relied upon the decision of the Apex Court dated 28th January, 2011 in the case of Jagpal Singh & Ors. Vs. State of Punjab and Ors.1 a s well as Government Resolution dated 12th July, 2011 issued in terms of a decision of the Apex Court in the case of Jagpal Singh(supra). It was observed in the order that as the land subject matter of order dated 17th June, 2011 was a gairan or grazing land, though the said order was passed before the Government Resolution dated 12th July, 2011 was issued, as per the decision of the apex Court, a gairan land cannot be allowed to be used for any
1 2011 AIR(SCW) 990
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other purpose other than the use by the villagers to graze their cattle. The State Government, therefore, held that the lease cannot be executed on the basis of order dated 17th June, 2011.
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to the additional affidavit of Shril Sunil Chandanshive, the Tahsildar, Wai, District – Satara. He urged that though in the “kabjedar” column of the 7/12 extract, it may have been described as “gurcharan land” (a grazing land), right from the year 1989-90, the 7/12 extracts show that the land was in possession of the State Government. He submits that there is nothing on record to show that either the management of the said land was transferred to the village panchayat or that the village panchayat was handling the management of the said land. He submits that the State Government cannot decline to execute lease on the basis of Government Resolution dated 12th July, 2011, as the order for execution of the mining lease was already passed on 17th June, 2011. He relied upon an order passed by the State Government on 26th November, 2013 in the case of Vikas Deoba Pawar. He urged that the State Government has allowed the mining lease to be executed in respect of the land shown as a gairan land in the 7/12 extract on the ground that the land ceased to be a gairan land as the
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mining leases were already granted in relation to the said land. He urged that the rule which is made applicable to the land of said Vikas Deoba Pawar in relation to the land bearing Gat No.221/1 of village Amrutwadi, Taluka – Wai, District – Satara should be applied to the case of the petitioner. He submits that even in the present case, the land appears to be vesting in the State Government as in the case of Vikas Deoba Pawar. He, therefore, urged that no different treatment can be given to the petitioner.
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“ 3. Since time immemorial there have been common lands inhering in the village communities in India, variously called gram sabha land, gram panchayat land, (in many North Indian States), shamlat deh (in Punjab etc.), mandaveli and poramboke land (in South India), Kalam, Maidan, etc., depending on the nature of user. These public utility lands in the villages were for centuries used for the common benefit of the villagers of the village such as ponds for various purposes e.g. for their cattle to drink and bathe, for storing their harvested grain, as grazing ground for the cattle, threshing floor, maidan for playing by children, carnivals, circuses, ramlila, cart stands, water bodies, passages, cremation ground or graveyards, etc. These lands stood vested through local laws in the State, which handed over their management to Gram Sabhas/Gram Panchayats. They were generally treated as inalienable in order that their status as community land be preserved. There were no doubt some exceptions to this rule which permitted the Gram Sabha/Gram Panchayat to lease out some of this land to
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landless labourers and members of the scheduled castes/tribes, but this was only to be done in exceptional cases. ”
(underline added)
. From the aforesaid paragraph-3 it appears that the Apex Court was dealing with the public utility lands which are available for the benefit of the villagers which can be used by the villagers of a particular village for various purposes such as storing harvested grains, as a grazing ground for the cattle etc.. The Apex Court observed that though under some of the local laws, the land stood vested in the State, the management of the said land was handed over to Gram Sabhas/Gram Panchayats. Therefore, the Apex Court directed the State Government to prepare the schemes for eviction of illegal / unauthorized occupants of such lands and for restoration of such lands for the common use of villagers of the village. Paragraph-22 of the said decision reads thus :
“ 22. Before parting with this case we give directions to all the State Governments in the
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country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha / Gram Panchayat / Poramboke / Shamlat land and these must be restored to the Gram Sabha / Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land. ”
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orders have been issued by the State Government permitting allotment of Gram Sabha land to private persons and commercial enterprises on payment of some money. The Apex Court observed that such Government orders are illegal and should be ignored.
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the said land as a grazing land for their cattle. In the case of Jagpal Singh (supra), more particularly in paragraph-3, the Apex Court was precisely dealing with such category of lands which were vesting in the State Government. The Apex Court has observed that though such land stood vested in the State Government under the local laws, the management of the same was handed over to the village panchayat. Even assuming that in the present case, there is no document available to show that the management of the said land was handed over to the village panchayat, the land does not cease to be a grazing or a gairan land which is a common land for the use and benefit of the villagers. We have already noted above that in paragraph-22 of the decision, the direction of the Apex Court is to restore such lands to the village panchayat for common use of the villagers of the village. Paragraph-22 indicates that even regularization of possession of such lands shall be permissible only in exceptional cases, such as, a lease granted under a Government notification to landless labourers or
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members of Scheduled Caste or Scheduled Tribes. Thus, the purport of the order of the Apex Court is that the common rights of the villagers of use of such a gairan lands should be zealously protected for benefit of the villagers and that there is a specific direction issued to restore such lands for the common use of the villagers. It is in this context that in paragraph-15 of the said decision, the Apex Court observed that the orders of allotment of such lands to private persons are illegal and such orders should be ignored.
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the petitioner has been passed subsequent to the decision of the Apex Court.
(A. S. CHANDURKAR, J.) (A. S. OKA, J.)
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2 issues framed by the court
Whether a mining lease can be executed on gairan (grazing) land after the Supreme Court directed restoration of such lands to villagers.
Whether the petritions reliance on a subsequent Gujarat High Court order overrides the Supreme Court’s direction in Jagpal Singh.
Colour shows how this judgement treated each authority
Jagpal Singh & Ors. Vs. State of Punjab and Ors.Applied¶18
2011 AIR(SCW) 990 · Who else cites this
2 provisions across 2 enactments
Shri Vijay Jyotiram Sawant
State of Maharashtra
A. S. OKA
A. S. CHANDURKAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
