Monday, June 4, 2012
The order from government of Maharashtra over Supreme Court Judgment regarding removal of encroachment over common lands
This is a translation of the order attached at the end.
July 12, 2011
1. Since British era certain land in the villages have been vested with the Gram Panchayat for common purposes, such as grazing, threshing, for festivities, graveyards, footpath, as village ponds etc. The entitlement rights are vested with the gram Panchayat. Recently the unauthorized usage of such land has increased tremendously. It is affecting the basic rights of the villagers and resulting in shortage of availability of the land. It brings strain on village resources in fulfilling of the basic necessities of the villagers. Encroachment on the common land, unauthorized construction and unauthorized usage are affecting village grazing land and land under other common uses.
2. The grazing land is usually vested or entrusted with the Gram Panchayat. While often such land is being utilized for building religious structures, commercial constructions are allotted to people with vested interests. No actions are taken against it either by the Gram Panchayat or by the revenue department. These results in less or no land remaining for common purposes.
3. The procedure for the allotment of the grazing land has been defined with the revenue and forest department, government order no. 1078/2616/777/G-2, dated 6.3.1984. According to the order, the land under grazing can be considered to be diverted to other purposes only in case when there is no other land available and the land under grazing is not falling below 5% of the total land under cultivation.
4. In the milieu of these provisions the allotment of the land for basic necessities such as water supply, health centers, school or state/centre sponsored energy projects became cumbersome. Hence a new government order revenue and forest department no land 1019/1017/P.N.- 59/J-1, dated 28.6.1999 was passed stating,
“In order to achieve a holistic development of the village, if the land is required for the provision of water supply, school, health center, energy supply and if there is no other government land available with the village, in such cases if there is no land available for diversion then the provisions for the land under grazing not falling below 5% of the total land under cultivation can be relaxed in order to avail the land. While doing so, the relaxation of the provision needs to be specifically mentioned in the Gram Panchayat resolution which needs to be approved / recommended by the executive officer of the concerned Zilla Parishad.”
5. According to Revenue and Forest department Government order No land 08/2008/P.N.113/J-1, dated 28.5.2010, it is mandatory to mention the Gram Sabha resolution along with Gram Panchayat resolution while diverting the land under grazing.
6. According to the order dated 28.11.1911, the encroachments on the common land by the backward class or other landless class made between 01.04.1978 to 14.05.1990 shall be regularized while the other unauthorized encroachments shall be removed.
7. The Supreme court judgement dated 28.01.2011 in case of civil appeal no 1132/2011@SLP(C) 3109/2011 Jagpal Singh and others Vs. State of Punjab and other cases regarding the land entrusted with the Gram Panchayat for the common purpose usage can be read as follows –
a. The common village land and grazing land are in custody of villages since ages and have been observed for multipurpose uses. For instance, providing drinking water to the cattle, ponds for washing, as seasonal food storage, roads, footpath, playing ground, recreation, circus, Ramlila ground, parking of bullock cart, water resources, open spaces, grave yard, cremation ground etc. while its entitlement rights were reserved with the government. In order to preserve their utility as the common lands they were classified as inalienable. Even though in certain exceptional cases, the land was complied to allot to the landless labourer, people from schedule caster/tribes etc. The villagers common land rights were preserved deliberately and declared so by elaborating “though the entitlement of such land lies in hand of government, the common usage rights of people are safeguarded.” While the anti social elements have used the muscle, fiscal as well as political power to acquire such land. Hence a plan of action shall be prepared with immediate effect to remove all the encroachment on the common land and it shall be handed over to the Gram Panchayat for public utility.
b. In connection with this plan the encroachers shall be issued a show-cause notice to be followed by a fast track hearing and the encroachment shall be removed immediately.
c. The structures under encroachments can’t be legalized or protected due to long existence or large expenditure over its construction. And such activity shall not be regularized.
d. The already existing constructions made with the directives of the government order in concern of landless labourers or scheduled castes / tribes, school, health centers and constructions of public utility shall be excluded from this action.
In this concern government has taken following steps in accordance with the Supreme Court judgment.
8. In accordance with the Honorable Supreme Court Judgment, the government is issuing orders to the Local Self government (Gram Panchayat, Nagar Palika, Nagar Parishad etc) to prepare an action plan to remove the encroachment on the common village lands or grazing land even if the structure has bear a large expenditure or existing since a long time as per the above mentioned provision from Paragraph 7(4). The concerned Tehsildar, Public Work and department and police administration shall contribute to this program to every possible extend. All concerned departments shall look into it as a social responsibility and ensure that such encroachment shall not take place in future.
9.a. In future grazing land shall be used only for the programs of public utility and public purposes undertaken by the state or central government that too only in case when no other land is available.
b. The grazing land shall not be allotted to any person, private institute or organization for any purpose.
c. While allotting land under provision no (2), observe following conditions –
i. A specific resolution to be passed by the Gram Sabha as well as Gram Panchayat approving the diversion of the land use.
ii. The said resolution shall be approved by the chief executive officer, Zilla Parishad.
iii. The Bonafide Area requirement shall be verified while diverting the land and hence the proposed plan and maps shall be accompanying the proposal.
d. In case of confusion in concern of public purpose and public utility consult the state government.
e. The case of diversion in usage of grazing land as well as the land vested with the Gram Panchayat shall be verified carefully to insure the following of procedures in accordance with the Hon. Supreme Court orders.
This GR has been issued in consultation with the rural development dept, law and order dept.
This GR has been published on the website of Government of Maharashtra with the code no 2011713162106001.
By order and name of Governor of Maharashtra
Chief Secretary, Revenue and Forest department