IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR.
CIVIL WRIT PETITION NO.2557 OF 2021
(Shriram s/o. Santu Ghewande (Died) through its L.R. Sarubai wd/o. Shriram Ghewande
Vs. State of Maharashtra, through its Secretary, Department of Revenue & Forest, Mumbai
and others)
Mr. S.M. Awachar, Advocate for petitioner
Mr. N.R. Patil, AGP for the respondent Nos.1, 3 and 4/State
CORAM : SUNIL B. SHUKRE AND
ANIL S. KILOR, JJ.
DATE : 26th JULY, 2021.
Heard Mr. Awachar, learned counsel for the petitioner and Mr. Patil, learned AGP, who appears by waiving notice on behalf of the respondent Nos.1, 3 and
2. The petitioner is admittedly an encroacher upon government "E" Class land, which is Gairan land. It is the contention of Mr. Awachar, learned counsel for the petitioner that the petitioner is a land less person, who has encroached upon this land since the year 1991 and therefore, the petitioner is entitled for allotment of the land encroached by her through its regularization. He also submits that there is a Gram Panchayat Resolution dated 30.06.1998, which gives no objection for permanent allotment of government land to the petitioner. It is also the case of the petitioner that the petitioner is eligible for regularization of her encroachment, as her case falls in the exceptional categories carved out in the case of Jagpal Singh and others Vs. State of Panjab and others, (2011) 11 SCC
3. Mr. Patil, learned AGP for respondent Nos.1, 3 and 4 submits that under Section 22A of the Maharashtra Land Revenue Code, 1966 (for short "the Code of 1966"), no regularization for any private purpose is permissible, as it could amount to diversion of the Gairan land against the express provisions of law. He also submits that even by the criteria laid down in the case of Jagpal Singh (supra), the petitioner is not entitled for any kind of regularization.
4. So far as Gram Panchayat resolution is concerned, we must say that there was no business for the Gram Panchayat to have passed a resolution, giving its no objection for regularization of the encroachment upon the government land, especially in view of the provisions made under sub-Section (6) of Section 22A of the Code of 1966. These provisions indicate that powers of diversion, grant, lease of Gairan land under Section 22A of the Code of 1966 shall be vested in the State Government. Therefore, passing of any un- warrented resolution in respect of the land, of which Gram Panchayat is not the owner or the land which is not vested in the Gram Panchayat, only amounts to meddling with the affairs of the State Government, for which purpose, appropriate action, if thought it necessary, would have to be taken by the State Government.
5. Section 22A of the Code of 1966 provides for diversion of the Gairan land only in a limited manner. Such diversion or grant has been provided for under sub-sections (2) and (3) of Section 22A of the Code of 1966. Sub-section (1) of Section 22A of the Code of 1966 lays down that any land which is set apart as a Gairan land shall not be diverted or granted or leased for any other purpose, except in the circumstances, provided in sub-sections (2) and (3). For the sake of convenience, sub-sections (1), (2) and (3) of Section 22A are reproduced as under:
"[22A.Prohibition on diversion of use of Gairan land (1)The land set apart by the Collector for free pasturage of village cattle (hereinafter referred to as "the Gairan Land") shall not be diverted, granted or leased for any other use, except in the circumstances provided in sub- sections (2) or (3), as the case may be.
(2)The Gairan land may be diverted, granted or leased for a public purpose or public project of the Central Government or the State Government or any statutory authority or any public authority or undertaking under the Central Government or the State Government (hereinafter in this section referred to as "Public Authority"), if no other suitable piece of Government land is available for such public purpose or public project.
(3)The Gairan land may be diverted, granted or leased for a project of a project proponent, not being a Public Authority, when such Gairan land is unavoidably required for such project and such project proponent transfers to the State Government, compensatory land as provided in sub-sections (4) and (5)."
6. It would be clear from the above provisions of law that except for public purpose, the Gairan land cannot be diverted or granted or leased out for any other use. In the present case, the petitioner is seeking allotment of the land on lease to her for private purpose, which is not permissible under above referred provisions of law.
7. Even in the case of Jagpal Singh (Surpa), the Hon'ble Apex Court has allowed regularization only in exceptional cases, and these cases have been listed as the cases where lease had been granted under some Government Notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other utility on the land. In present case, admittedly, the petitioner is not there on the land by virtue of some Government Notification in her favour. Admittedly, the petitioner is seeking regularization of her encroachment for only private purpose. Therefore, as per the law laid down by the Hon'ble Supreme Court of India, the petitioner is not entitled for regularization of her encroachment by allotting the land on lease to her.
8. In the result, we find no merit in the petition, the petition stand summarily dismissed. No costs.
9. The learned counsel for the petitioner submits that crops of Soyabean and Toor are standing on the encroached land and therefore, some protection should be given to the petitioner to enable her to save the harvest of these crops.
10. There is nothing on record which establishes as a fact that these crops are standing on the land in question. Besides, notice has been received by the petitioner in May 2021 and therefore, if the contention of the petitioner is correct, petitioner ought to have taken necessary steps by now regarding removal of the crops, which apparently the petitioner has not done so.
11. The prayer made by the learned counsel for the petitioner is, therefore, rejected. However, the petitioner may approach the Tahsildar for grant of time of one week or two weeks at the most for restoring the land to its original position, if any.
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