Bombay High Court
Narayan Wamanrao Charade And Ors. vs The State Of Maharashtra, Through ... on 13 April, 2007
Equivalent citations: 2007(4)MHLJ91
Author: B.P. Dharmadhikari
Bench: A.H. Joshi, B.P. Dharmadhikari
JUDGMENT B.P. Dharmadhikari, J.
1. Considering the nature of controversy the matter is heard finally at the stage of admission itself. Rule is made returnable forthwith, by consent of parties.
2. Heard learned Advocate Mr. R.L. Khapre for Appellants, learned A.G.P. Mr. S.S. Doifode for Respondents 1 and 7, learned Advocate Mr. Mokadam for respondents No. 2 and 6 and learned Advocate Mohgaonkar for respondent No. 3. Nobody has appeared for respondent No. 4, though served.
3. Challenge in the Letters Patent Appeal is to order dated 21st August, 2006 passed by learned Single Judge of this Court, dismissing Writ Petition No. 2428 of 2005 in motion hearing. The grievance made by the petitioners, who are appellants before us, in writ petition was that they were sought to be evicted in breach of principles of natural justice without giving them opportunity of hearing or to show cause and also in contravention of provisions of Bombay Village Panchayat Act, 1958. The learned Single Judge has relied upon findings recorded by the Additional Commissioner in the order impugned before him and found that the inquiry was duly conducted by Zilla Parishad and the petitioners, therefore, have been held not to possess any right on account of illegal allotment.
4. Learned Advocate has contended that these so called illegalities in allotment have been used against the appellants though they never had any opportunity before the lower authorities to point out that the allotment in their favour is legal as all of them fall 'below poverty line'.
5. On last occasion, we passed orders and permitted respondents No. 2, 3 and 6 to point out to us that any show cause notice or any communication in this respect was issued by them before passing orders of eviction against the appellants. Respondent No. 5, alone, has filed reply affidavit thereafter. But in the said affidavit-in-reply also there is no express mention that any such show cause notice or opportunity was given to the appellants.
6. Learned Advocate Mr. Mokadam, from the record with him, invited attention of the Court towards communication dated 26th March, 2004, addressed by the State Government to the Additional Commissioner by which the State Government has directed the Divisional Commissioner and Chief Executive Officer to take further necessary action in the matter and submit their report immediately. The Divisional Commissioner has been directed to take action for cancellation of shops which were distributed by Mr. Charde i.e. present respondent No. 4. From perusal of this communication, it is apparent that the Government has only directed the Divisional Commissioner to proceed in accordance with law and has not asked him to evict the appellants directly. Admittedly, the Divisional Commissioner has not issued any notice to present appellants before passing orders of their eviction.
7. The learned Advocate appearing for respondent No. 7 and also respondent No. 2 have stated that statements of appellants were recorded by Extension Officer, Panchayat Samiti, Karanja after the Government issued communication dated 26th March, 2004. However, as is apparent, the purpose of recording those statements has not been communicated to the appellants/ petitioners. In such circumstances, we find that the action for eviction of the appellants and notice issued for that purpose is in breach of principles of natural justice.
8. Learned Advocate Mr. Khapre contends that the action initiated is also contrary to the provisions of the Bombay Village Panchayat Act. However, we find that, it is not necessary for us to record any finding in this respect in the matter.
9. In these circumstances, the impugned order passed by learned single Judge is hereby quashed and set aside.
10. The eviction notice dated 07.05.2005, issued by Sarpanch and Secretary, Gram Panchayat, Thanegaon is also hereby quashed and set aside.
11. Respondents No. 1, 2, 3, 6 and 7 are permitted to proceed further in accordance with law for taking action as per Government letter dated 26th March, 2004.
12. Action will be taken after giving due opportunity to the appellants to lay their stand for consideration of the competent authority in this respect.
13. Rule made absolute accordingly. However, in the circumstances of the case, there shall be no order as to costs.