Ambalal Dosaji Thakore v. State Of Gujarat

C.L. Soni, J.:— Following are the prayers made in paragraph no. 19 in the present petition filed under Article 226 and 227 of the Constitution of India.

“(A) YOUR LORDSHIP may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or a writ of certiorari or a writ in the nature of certiorari or any other appropriate writs, orders or direction nu quashing and setting aside the impugned order passed by the respondent no. 1 dated 27.04.2018 (At Annexure-K hereto) and further be direct the respondent authorities to consider the application seeking regularization of dwelling house of the petitioners situated at revenue survey no. 237/P/13(1) situated at village Kant, Taluka-Deesa, District-Banaskantha.

(B) Pending admission, hearing and final disposal of the writ petition YOUR LORDHIP may be pleased to restrain the respondent authorities, their officers, servants, agents, assignees, successors, etc. executing and operating and implementing the order passed by the respondent no. 1 dated 27.04.2018 (At Annexure-K)

(C) Pending admission, hearing and final disposal of the writ petition YOUR LORDHIP may be pleased to restrain the respondent authorities, their officers, servants, agents, assignees, successors, removing the petitioners or their family members from the dwelling houses, situated at village Kant, Taluka-Deesa, District-Banaskantha.

(D) Such other and further reliefs as are deemed fit, in the facts and circumstances of this case may kindly be granted.”

2. The case of the petitioners is that they have been residing with their family in the dwelling houses for last more than 30 years on land bearing survey no. 237/P/13(P) situated at Village: Kant, Taluka: Deesa, Dist: Banaskantha. Such was the Gauchar Land which was then Gamtal Land for the purpose of making allotment of plots for dwelling houses. It is stated that the petitioners are ready and willing to deposit regularization fees as may be decided/determined by the concerned Government authorities.

3. It appears that by order dated 24.10.2009 as recorded in the record of rights maintained by village Panchayat at Annexure-A, the Collector allowed divesting some land from the Gauchar head on different conditions as Gamtal. One of such conditions was to dispose of the land by auction. The petitioners however, made an application to the Collector to regularize their encroachment on the Gauchar Land which the Collector vide his order dated 09.01.2012 at Annexure-H rejected on the ground that Hon'ble Supreme Court has put restriction on making any allotment from the Gauchar Land. Such order was challenged by the petitioners by filing Revision Application before the State Government. However, the Secretary, Revenue Department (Appeals) has rejected the Revision Application and confirmed the order of the Collector.

4. Learned advocate Mr. Vyas for the petitioner submitted that the petitioners have been residing in their dwelling houses for last 30 years and since they are ready to pay the regularization fees, the Collector was required to consider the request of the petitioners for regularization as he had already ordered divesting Gauchar Land for the purpose of making allotment of plots as Gamtal. Mr. Vyas submitted that when the petitioners approached the Panchayat and Mamlatdar and showed their willingness to pay necessary fees for the purpose of regularization, the Panchayat had shown inclination to regularize the occupation of the petitioners, by accepting fees for such purpose. However, the Collector has rejected the application of the petitioners simply on the ground that there are restrictions put by the Hon'ble Supreme Court on making any allotment from the Gauchar Land.

5. The Court on hearing learned advocate Mr. Vyas, when asked as to whether, after the Collector passed order for divesting the Gauchar Land to Gamtal, the Panchayat has taken any action as per the conditions imposed by the Collector. Mr. Vyas submitted that as per the information given to him pursuant to the order of the Collector, the Panchayat has not initiated any action and the land is in the same position as it was before the Collector passed order dated 24.10.2009. The Court finds that in the context of the conditions imposed by the Collector if the actions/steps are taken for the purpose of making allotment of the plots from the land to the eligible persons it will be open for the petitioners to apply for allotment of the plot in the scheme for such allotment. However, if no steps are being taken by the Panchayat pursuant to the order of the Collector, the request of the petitioner to regularize their occupation on Gauchar Land cannot be granted even if the petitioners are agreeable to pay the regularization fees as the Gauchar Land is maintained for grazing of cattle of the village and nobody is entitled to allotment of any portion of the Gauchar Land. The petitioners are therefore, not entitled to get regularization of their alleged long occupation on Gauchar Land. The Court finds that Collector and the revisional authority have committed no error in not acceding to the request made by the petitioners for regularization of their occupation on Gauchar Land.

6. In view of the above, the petition is required to be rejected. It is accordingly rejected.