Use Of Gauchar Land By State Or Any Third Party Contrary To What Is Permitted Cannot Go On: Supreme Court

"It is trite to say that gauchar 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," the division bench of Justice SK Kaul and Justice MM Sundresh observed.

The Top Court granted the State three months time to take appropriate action of bringing the land in conformity with its use and directed the state to file a compliance report within two weeks thereafter.

Noting that out of the 72 persons who were found to have made encroachment in the land, 3 persons in the scheduled caste category and 2 persons belonged to socially economically backward class were entitled to alternative accommodation, the bench said that rehabilitation of persons was not really required as only 3 persons were entitled to the alternative site as per rules.

"The Scheduled caste persons concerned are stated to have already benefited from 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," the bench in its order also noted.

The Court had also noted that in respect of the use of the land, the Government was running Anganvadi, a school in the said premise, one cooperative society was running a dairy and there was one temple of Hanumanji.

Remarking that there was of course some dispute whether encroachers have made permanent structures or kuchha construction for keeping cattle, the bench again reiterated that the user could not be contrary to what was being permitted for gauchar land, which was a grazing land.

Background

The bench in the present matter was hearing a special leave petition against the order of dismissal dated April 12, 2019 ("impugned order") passed by the Division Bench of Gujarat High Court in 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 High Court had dismissed the petition after obtaining an affidavit in reply predicated on the reasoning that all the people who were unauthorizedly occupying were from the low-income strata of society and they were residing there since many number of years and that it would not be appropriate to direct their immediate removal unless alternative accommodation was provided to them by the State and its authorities in accordance with its policy.

The Top Court thereafter set aside the impugned order and allowed the appeal.

Case Title: Rameshbhai Virabhai Chaudhari v The State of Gujarat

Citation: LL 2021 SC 431