IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
PUBLIC INTEREST LITIGATION NO. 35 OF 2021
Valmik S/o Pandharinath Wakcharue & Anr. ..PETITIONER
Versus
The State of Maharashtra & Ors. ..RESPONDENTS
WITH
CIVIL APPLICATION NO.7732 OF 2021
IN
PUBLIC INTEREST LITIGATION NO. 35 OF 2021
Rajendra Ratan Thete and Ors. ..APPLICANTS
Versus
Walmik Pandharinath Waghcaure ..RESPONDENTS
...
Mr. R. G. Ambetkar, Advocate for the Petitioners.
Mr. P. K. Lakhotiya, AGP for Respondents-State.
Mr. N. V. Gaware, Advocate for Applicants in CA.
...
WITH
WRIT PETITION NO.6487 OF 2021
Kailas Chandrabhan Waman and Ors. ..PETITIONERS
Versus
The State of Maharashtra and Ors. ..RESPONDENTS
WITH
WRIT PETITION NO.6488 OF 2021
Ganesh Dilip Nehe and Ors. ..PETITIONERS
Versus
The State of Maharashtra and Ors. ..RESPONDENTS
WITH
WRIT PETITION NO.6489 OF 2021
Ranjandas Karbhari Wackchaure and Ors...PETITIONERS
Versus
The State of Maharashtra and Ors. ..RESPONDENTS
WITH
WRIT PETITION NO.6490 OF 2021
Ashok Raghu Nehe and Ors. ..PETITIONERS
Versus
The State of Maharashtra and Ors. ..RESPONDENTS
WITH
WRIT PETITION NO.8188 OF 2021
Shivaji Bakru Nehe and Ors. ..PETITIONERS
Versus
The State of Maharashtra and Ors. ..RESPONDENTS
...
Mr. N. V. Gaware, Advocate for the Petitioners.
Mr. P. K. Lakhotiya, AGP for Respondent Nos.1 to 3, 5 and 6.
...
CORAM : S. V. GANGAPURWALA &
R. N. LADDHA, JJ.
Closed for Orders on : 01.10.2021.
Order Pronounced on : 29.10.2021
JUDGMENT (Per S. V. Gangapurwala, J.) :-
1. All these matters are based on similar set of facts, as such are decided by a common judgment.
2. Public Interest Litigation No.35 of 2021 is filed seeking directions against respondents-authorities to remove the encroachments over the public property that is gairan land and public way bearing Gut No.447 and 448 at village Dhondewadi, Post Jawalke, Tq. Kopargaon, Dist. Ahmednagar. The Writ Petitions are filed challenging the communication issued by the Sub Divisional Officer, Tahsildar and Block Development Officer directing the demolition/removal of 51 structures from Gut No.447 of village Dhondewadi.
3. The petitioners in Public Interest Litigation No.35 of 2021 had earlier filed Public Interest Litigation No. 5 of 2018 before this Court. The said Public Interest Litigation and another Writ Petition No.9199 of 2018 was disposed of by issuing directions to Collector, Dist. Ahmednagar to decide the representation of petitioners as expeditiously as possible and preferably within sixteen weeks from the date of order after extending opportunity of hearing to the parties. The Collector, Ahmednagar partly allowed the application filed by petitioners under order dated 14.06.2019 and directed the Sub Divisional Officer, Shirdi to take steps as per Government Resolution dated 16.02.2018 and submit detail report of enquiry. The Tahsildar, Kopargaon under communication dated 14.01.2020 communicated to the Sub Divisional Officer, Shirdi that as per the measurement and the records with Grampanchayat and Revenue Department, 90 encroachments in Gut No.447 and 448 at village Dhondewadi are found which are not eligible for regularization as per Government policy and Act. On or about 23.01.2020, the report is submitted by the Block Development Officer of Panchayat Samiti, Kopargaon about encroachments in Gut No.447 and 448 at village Dhondewadi. According to the petitioners in Public Interest Litigation, though, the report is submitted, no steps are undertaken for removal of the encroachments from the gairan land and the public way.
4. After filing of the Public Interest Litigation No.35 of 2021, respondent no.4 issued communication on 08.01.2021 to Tahsildar and Block Development Officer to undertake demolition/removal of 51 structures from Gut No.447 and 45 structures from Gut No.448 of village Dhondewadi. The petitioners in all these writ petitions challenged the said communication.
5. According to Mr. Ambetkar, learned counsel for the petitioners in Public Interest Litigation, the encroachments of these respondents is writ large. 51 persons have encroached in land Gut No.447. The said encroachments deserves to be removed immediately and in Gut No.448, 45 persons have encroached illegally on the gairan land. The encroachments on the gairan land cannot be regularized. Reliance is placed on the Government Resolution dated 12.07.2011 and also the judgment of the Apex Court in Civil Appeal No.1132 of 2011 decided on 28.01.2011 in a case of Jagpal Singh and Ors. Vs. State of Punjab and Ors. The learned counsel further submits that, all persons who have encroached upon have their own houses in the same village, still have committed encroachments and are seeking regularization, the same are not permissible. The chart given by the Government is correct.
6. Mr. Gaware, learned counsel for petitioners in writ petitions submits that, the impugned orders directing that, the structures of petitioners be removed is illegal and is passed without adhering to the principles of natural justice. The petitioners were not noticed while issuing the said communication. The stand of petitioners was not invited. The petitioners would have been in a position to substantiate that their encroachments are not illegal. Now some of them are shown to be given benefits of Gharkul Yojna. The same is given to the another person in the family. The land owned by the independent family members cannot be considered, as the land of petitioners. All these aspects could have been pointed out by petitioners, had authorities given opportunity to the petitioners to put forth their case. As the principles of natural justice are violated, the impugned orders are bad in law. The learned counsel further submits that, these persons having their structures on the lands are poor persons. They will not have roof over their head, if the structures are removed. According to the learned counsel, proper procedure is required to be followed before passing orders for removal and other alternate accommodation be provided before eviction. The learned counsel relies on the judgment of the Apex Court in a case of Olga Tellis and Ors. Vs. Bombay Municipal Corporation and Others reported in 1986 AIR (SC) 180. The learned counsel submits that, the decision making process has to be fair and transparent. Only because some persons filed Public Interest Litigation that should not be a ground to evict petitioners. The petitioners' possessions are required to be regularized as per the policy of the Government. Some persons if they have been granted benefits under the Gharkul Yojna, even, the same cannot be a yardstick to label that all the persons are not entitled for benefits of regularization. The learned counsel relies on the judgment of the Apex Court in a case of Onkar Lal Bajaj and Others Vs. Union of India and Another reported in (2003) 2 SCC 673. The learned counsel submits that, the civil rights are adversely affected. The principle of audi alteram partem has to be followed as a Rule. The learned counsel relies on the judgment of the Apex Court in a case of Mohinder Singh Gill Vs. Chief Election Commissioner, New Delhi reported in 1978 AIR (SC) 851.
7. The learned A.G.P. submits that, after the order was passed by this Court in Public Interest Litigation No.5 of 2018 alongwith companion matters and Writ Petition No.9199/2018 dated 01.11.2018, the office of Collector has given the detailed hearing to all the concerned parties who were parties before this Court. The respondent no.2- Collector also called the reports from the subordinate Government Officers in respect of the subject matters that is encroachments over the Government Land in Gut No.447 and 448 of village Dhondewadi. All petitioners herein were represented and filed their say through Mr. Nehe and after detailed enquiry and after giving the full consideration to all the reply and say filed by the concerned departments, the Collector passed an order on 14.06.2019. It is found that, some of the encroachments are required to be regularized as per the guidelines enumerated in the Government Resolution dated 16.02.2018 and some of the orders were passed to remove the encroachments of the persons not eligible for regularization. The same was done after verifying the reports from the Tahsildar and the Block Development Officer. The physical survey was done by the Talathi, Gramsevak of Gut No.447 and 448 and the report was prepared and submitted to the Committee. The Committee after going through the entire record found that, in Gut No.447, 7 persons are entitled for regularization and remaining encroachers have alternate lands and still they have encroached on Government land, so also in Gut No.448 not a single person is entitled for regularization, more importantly 20 encroachments are found for the business purpose and residential purpose and those were done after 2011. They are not fit for regularization. No action was taken because the pandemic situation was arisen. After the ease in the pandemic situation, the further process is done. The learned A.G.P. further submits that, in Gut No.447, 60 encroachments are held not entitled encroachments are not entitled for regularization. It is incorrect to say that, no notices were issued to petitioners. The Grampanchayat, Dhondewadi already issued notices for removal of encroachments after the order was passed by the Collector. The learned A.G.P. relies on the chart submitted by him.
8. We have considered the submissions canvased by the learned counsel for parties.
9. The petitioners in writ petitions do not dispute that, they are the encroachers over the gairan lands bearing Gut No.447 and 448 at village Dhondewadi. The prima donna contention is that, principle of natural justice has not been followed.
10. Some of the persons had also earlier filed writ petitions. Notices were given to them. It would appear that, say was also filed by some of the petitioners. The say appears to have been filed in the representative capacity. The committee was constituted at the level of Sub Divisional Officer. The detailed enquiry was made about the encroachers and whether they are entitled for regularization. The order is passed for removal of persons who have encroached on the gairan land and not entitled for regularization. It also appears that, say was filed by one person in representative capacity. The fact remains that, these are the persons who have been given benefits under the various public schemes, such as, Gharkul Yojna. In some cases, the husband has been granted land and the benefit under the Gharkul Yojna and encroachment on the gairan land is made in the name of wife. In some cases, the benefit of the Gharkul Yojna is given in the name of son and the mother is encroacher on the gairan land. In some cases, the person himself is granted benefit under the Gharkul Yojna and has house constructed, still has encroached upon the gairan land. The detailed chart is filed by the State Government clarifying as to how these encroachments on the gairan land are not entitled for regularization. The said chart is in regional language. It is reproduced as under:
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11. We can understand the plight of persons who do not have roof over their head and order of removal of encroachments is passed against him, but here are the persons who have been given the benefit of public schemes of Government, such as Gharkul Yojna and have again caused encroachments on the gairan land. Such persons cannot be protected. The detailed survey seems to have been made by the Committee and thereafter, the conclusion has been drawn. The documents are also relied by the authorities. The chart given provides for the details as to how these persons are not entitled for regularization. These are the persons who either are given benefits under the scheme and still have encroached on the gairan land and/or some already have their houses and still structures are erected by committing encroachments. Some of the persons have started commercial activity. The details have been given in the affidavit-in-reply. Certainly for commercial purpose, the same would not be permissible. Even after the order is passed by the Collector holding that as per Government Resolution dated 16.02.2018, the persons are not entitled for regularization two years have lapsed. The measurement was already carried out by TILR. The boundaries are demarcated. Initially, the Committee of Sub Divisional Officer, Tahsildar and Block Development Officer has called a report from concerned Block Development Officer of Panchayat Samiti. The Committee with the help of Talathi and Gramsevak carried out physical survey of all the encroachments in Gut No.447 and 448. They identified the exact encroachments and the reasons of the encroachments and they submitted the report. There were very few encroachments in Gut No.447 who are entitled for regularization and their cases has been considered positively. Some of the encroachers have alternate lands, still have encroached on Government land. The 7/12 extracts supports the stand of the Government. In Gut No.448 out of 45 encroachments, 20 encroachments are found to be for business purpose and those were after 2011. If the encroachments are after 2011, they cannot be regularized even as per Government Resolution dated 16.02.2018. Earlier some of the encroachers had filed writ petitions. The writ petitions were disposed of directing the Collector to conduct enquiry and consider the stand and now some other persons are filing writ petitions.
12. The gairan land cannot be used for business purpose. The Government comes out with the laudable policy to regularize the encroachments of the needy persons and who may not have roof on their head or it is essential for the livelihood to qualify the encroachment land. In the present case, petitioners who have encroached upon the gairan land, possess and own the agriculture lands. They possess structures in their own agriculture lands. Some of them or their family members have been granted benefits of Gharukul Yojna i.e. the Government Scheme for construction of house and still encroached on the gairan land and some of them have carried out commercial activities on the encroachments made on the gairan land. Such encroachments cannot be protected. The Court would not come to the aid of such persons. In case of Olga Tellis and Ors. Vs. Bombay Municipal Corporation and Others (Supra) the persons affected by the demolition notice / eviction notice were the pavement dwellers and were to be deprived of their livelihood and life. In the present case, situation is otherwise. These persons have alternate accommodation. They owned the agriculture lands. They are given benefits of Gharkul Yojna that is the Government Scheme, inspite of that, are maintaining encroachments on the gairan lands. They cannot be granted protection by invoking our writ jurisdiction under Article 226 of the Constitution of India. The gairan lands are not meant for indiscriminate encroachments. The Apex Court in a case of Jagpal Singh and Ors. Vs. State of Punjab and Ors. (supra) had observed that, encroachments on the gairan lands are to be removed and should not be permitted. Pursuant to the judgment of the Apex Court in a case of Jagpal Singh and Ors. Vs. State of Punjab and Ors. the Government Resolution dated 12.07.2011 has been issued.
13. Considering the above, we cannot come to the aid of petitioners in these writ petitions. The Government Authorities may proceed further pursuant to their communications for removal of illegal encroachments and encroachments of those persons whose encroachments cannot be regularized.
14. The petitioners in writ petitions may remove their encroachments from Gut No.447 and 448 at village Dhondewadi within a period of one month. In case, these petitioners do not remove the encroachments within a period of one month, then respondent-authorities may proceed further for removal of encroachments.
15. With the aforesaid observations and directions, the Public Interest Litigation and Writ Petitions stand disposed of. No costs.
16. In view of disposal of Public Interest Litigation No. 35 of 2021, present Civil Application No.7732 of 2021 stands disposed of.
(R. N. LADDHA) (S. V. GANGAPURWALA)
JUDGE JUDGE
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