1. Heard Mr. Dipak H. Sindhi, Mr. Bhavesh D. Hajare and Mr. Hemal A. Dave, learned advocates for the petitioners, Mr. Ronak B. Raval, learned AGP for the Government authorities and Mr. Hemant S. Munshaw, learned advocate with Mr. Rajesh M. Chauhan for the Panchayat authorities.
2. As identical questions arise in this group of petitions, these petitions are dealt with and dispose of by this common judgment.
3. It is contended by the learned advocates appearing for the petitioners that the petitioners are in possession of the lands in question since more than four decades and they have their dwellings over the lands in question with facilities of electric connection and other amenities. It is the case of the petitioners that the petitioners have been regularly paying tax to the Gram Panchayat and they also have ration cards which indicates that they are occupying the lands in question. It is submitted that the petitioners belong to poor strata of society and the have no other alternative residences to stay. The learned advocates appearing for the petitioners emphatically contended that similarly situated persons have been given benefit of benevolent scheme like Indira Aavas Yojna by the State Government. It is further contended that as such the lands in question are not required for any public purpose by the Panchayat or by the State Government and the very existence of the dwellings of the petitioners are not the traffic hazard as it is a small place. It is further contended that the area around the lands occupied by the petitioners is predominantly a residential area. Learned advocates appearing for the petitioners relying upon the ratio laid down by the Division Bench of this Court in the case of Jawaharnagar Jhoopda Samittee Mandal (Old Railwayline) Vs. Union of India & Ors., reported in 2009 (2) GCD 1302 and further relying upon the ratio laid down by this Court in the case of Intajamuddin Yasinbhai Ansari & Ors. Vs. State of Gujarat & Ors., reported in 2009 (2) GLH 679 submitted that equal treatment should be given to the petitioners. It is further contended on behalf of the petitioners that without giving them alternative accommodation, the respondent authorities cannot evict the petitioners from the lands in question. Learned advocates for the petitioners also relied upon the latest judgment of the Hon'ble Apex Court in the case of Esha Ekta Appartments CHS Limited & Ors. Vs. Municipal Corporation of Mumbai & Anr., reported in (2012) 4 SCC 689 and submitted that the case of the petitioners need to be considered in light of the scheme of the Government. No further or other contentions are raised by the learned advocates for the petitioners.
4. Per contra, Mr. Hemant S. Munshaw, learned advocate with Mr. Rajesh M. Chauhan for the Panchayat authorities relied upon the affidavit in reply filed by them. It is submitted that in light of the ratio laid down by the Hon'ble Apex Court in the case of Jagpal Singh & Ors. Vs. State of Punjab & Ors. reported in AIR 2011 SC 1123, as the petitioners are occupying the lands which are part of Gauchar land, possession of the petitioners cannot be regularized. It is very candidly submitted that the representations filed by the petitioners have not been considered and each case requires to be examined individually.
5. Mr. Ronak B. Raval, learned AGP for the Government authorities also supports the arguments made by Mr. Hemant S. Munshaw, learned advocate with Mr. Rajesh M. Chauhan for the Panchayat authorities.
6. Considering the grounds raised by the petitioners and the ratio laid down by the Hon'ble Apex Court in the case of Esha Ekta Appartments CHS Limited (supra), at this stage, it would be advantageous to quote Paras 23 and 24 of the aforesaid judgment: “23. In view of the above, we may have dismissed the special leave petitions and allowed the Corporation to take action in furtherance of notices dated 19.11.2005 and orders dated 3.12.2005/8.12.2005, but keeping in view the fact that the flat buyers and their families are residing in the buildings in question for the last more than one decade, we feel that it will be in the interest of justice that the issue relating to the petitioners' plea for regularization should be considered by this Court at the earliest so that they may finally know their fate.
24. We, therefore, direct the petitioners to furnish the particulars of the writ petitions filed for regularization of the construction which are pending before the High Court. The needful be done within a period of two weeks from today. Within this period of two weeks, the petitioners shall also furnish the particulars and details of the developers from whom the members of the societies had purchased the flats. List the cases on 16th March, 2012 (Friday).”
7. In view of the aforesaid observations made by the Hon'ble Apex Court, interest of justice would be served if the respondent authorities and more particularly, the Panchayat authorities are directed to examine the case of the petitioners and after affording an opportunity of being heard to the petitioners, take appropriate decision. It is, however, made clear that it would be open for the Panchayat authorities to take appropriate decision taking into consideration the submissions that may be made by the petitioners before it independently as per the prevailing policy of the State Government.
8. In view of the fact that the petitioners are sought to be evicted, the respondent Panchayat authorities are further directed to take decision as observed in this judgment after hearing the petitioners within a period of eight weeks from today.
9. With these observations, the petitions are disposed of with no order as to costs. Notice discharged in each matter. Direct service is permitted.
10. Registry is directed to place a copy of this judgment in each matter.
[R.M.CHHAYA, J.] mrpandya