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Bharvad Deva Sukha and ors. Vs. the Government of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Appln. No. 2955 of 1982
Judge
Reported inAIR1983Guj165; (1983)1GLR335
ActsGujarta Panchayats Act, 1962 - Sections 168 and 168(1); Gujarta Panchayats Act, 1961 - Sections 168
AppellantBharvad Deva Sukha and ors.
RespondentThe Government of Gujarat and ors.
Appellant Advocate J.D. Ajmera, Adv.
Respondent Advocate C.K. Takwani, Adv. for Purnanand and Co. and; P.M. Raval, Adv.
DispositionPetition allowed
Excerpt:
.....the official gazette, apply this section, a mamlat-dar or mahalkari is satisfied--(i) that the grazing land set apart for the use of cattle of one or more villages in the taluka, or mahal under his jurisdiction is insufficient for the cattle belonging to the permanent residents of such village or villages; ' reading section 168 it clearly appears that the two type of cases are contemplated. when both these conditions are satisfied the onto which could be passed it that such non-resident may be asked to remove his cattle to a place specified within the state......both these conditions are satisfied the onto which could be passed it that such non-resident may be asked to remove his cattle to a place specified within the state. when one reads this order one does not find that the order is pawed against the non-resident. it is nowhere stated that non-resident owns 20 heads of cattle. again the persons are not asked the remove cattle to a specified place. the order only stares that the persons should not move their cattle on particular highways. such an order is not contemplated under section 168 of the gujarat panchayats act, 1961. under these circumstances the order passed is set aside. the petition, therefore, is allowed and the order passed by the mamlatdar on 21-6-1982 is set aside. rule is made absolute with no order as to costs.
Judgment:
ORDER

S.L. Talati, J.

1. The petitioners are the residents of village Sayala of SurendranagarDistrict and they challenged the order passedby the Mamlatdar, dated 21-6-1982 and produced at Annexure 'B'. The order is purported to have been passed in accordancewith Section 168 of the Gujarat PanchayatsAct, 1961. It appears that the State Government had issued a notification under Section 168 of the Gujarat Panchayats Act, 1961and in accordance with that notificationSection 168 of the Act was extended toSayala gram panchayat area. That notification is produced at Annexure 'A'. Now that,therefore, the State Government which hadthe power to issue such notification hadissued the notification and, therefore, theMamlatdar got the power under Section 168of the Act and in exercise of that power itappears that the Mamlatdar, Sayala passedan order dated 21-6-1982 after recording theevidence.

2. Having gone through the order it clearly appears that the Mamlatdar recorded the finding that the total number of cattle in Sayala was 2031 and for those cattle 812 acres of land was necessary. There is a further finding that a Sayala village gauchar land area was 1186 acres. Therefore, a clear finding was given that the land was sufficient for the cattle belonging to the residents of village Sayala. Under, these circumstances the Mamlatdar was required to act under Section 168 (1) (ii) of the Act. We may here reproduce the relevant portion of Section 168 of the Gujarat Panchayats Act, 1961:--

'168. (1) If in any local area to which the Slate Government may, by notification in the Official Gazette, apply this section, a Mamlat-dar or Mahalkari is satisfied--

(i) that the grazing land set apart for the use of cattle of one or more villages in the taluka, or mahal under his jurisdiction is insufficient for the cattle belonging to the permanent residents of such village or villages;

(ii) that the crops or grass standing on any agricultural land or grazing land so set apart are likely to be damaged by cattle belonging to persons who are not residents of such village or villages and who own more than twenty head of cattle, he may--

(a) in any case referred to in Clause (1) direct any such resident owner, by special or general order, to remove or cause to be removed all or any dry or useless cattle belonging to him to such place or places within the State and within such period as may be specified in the order, and

(b) in any case referred to in Clause (ii) direct any such non resident owner, by special or general order, to remove or cause to be removed all or any of the cattle to such place or places within the State and within such period as may be specified in the order.'

Reading Section 168 it clearly appears that the two type of cases are contemplated. The first type of case is the case where the land is insufficient for the cattle belonging to the permanent resident of the village. In that case the Mamlatdar had the power which is specified in Section 168 (1) (a) of the Act and that power is to direct the resident-owner to remove the dry or useless cattle to such place or places within the State and within the period to be specified in the order. Now in this particular case such an eventuality could not arise as the land found was sufficient. The second type of contingency which is contemplated by Section 168 of the Act is a contingency where non-resident-owner damaged the crops or grass standing on any agri-cultural land or grazing land so set apart by the cattle belonging to them and they own more than 20 heads of cattle, in such an eventuality action under Section 168 (1) (b) is contemplated as the Mamlatdar has the power to direct such non-resident owner to remove all or any of his cattle to such place within such period specified in that order. Now that, therefore, the order which is required to be passed is against the non-resident of the village. Again such non-resident must own more than 20 heads of cattle. When both these conditions are satisfied the onto which could be passed it that such non-resident may be asked to remove his cattle to a place specified within the State. When one reads this order one does not find that the order is pawed against the non-resident. It is nowhere stated that non-resident owns 20 heads of cattle. Again the persons are not asked the remove cattle to a specified place. The order only stares that the persons should not move their cattle on particular highways. Such an order is not contemplated under Section 168 of the Gujarat Panchayats Act, 1961. Under these circumstances the order passed is set aside. The petition, therefore, is allowed and the order passed by the Mamlatdar on 21-6-1982 is set aside. Rule is made absolute with no order as to costs.


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