SHRI. BHAGWAN KISAN WAGH V. STATE OF MAHARASHTRA

Bombay High Court  (21 Jul, 2016)

A.S Chandurkar, J.:— Since common issues arise in all these writ petitions they have been heard together and are being decided by this common judgment.

2. Rule. Rule in each writ petition is made returnable forthwith and the learned counsel for the parties have been heard at length. For the sake of convenience the facts in Writ Petition No. 6466 of 2015 are being referred to.

3. The petitioner claims to be in possession of E Class land-Gairan land since the year 1990. According to the petitioner, the respondent no. 1 has issued Government Resolution dated 28.11.1991 in the matter of regularisation of encroachments of such lands. In the said Government Resolution a policy decision has been taken to regularise encroachments made between 01.04.1978 and 14.04.1990 According to the petitioner in terms of aforesaid Government Resolution steps were taken by the revenue authorities for regularising the encroachments. No objection was obtained from the Grampanchayat and recommendation for regularising the encroachment committed by the petitioner was submitted by the Sub Divisional Officer to the Additional Collector. Thereafter a demand of penalty towards regularising the encroachment was also made from the petitioner. However by order dated 09.10.2015 the Collector Buldhana rejected the application for regularising the encroachment committed by the petitioner. Being aggrieved by the aforesaid order the petitioner has challenged the same before this Court.

4. Shri P.S Khubalkar and Shri R.N Ghuge, the learned counsel for the petitioners submitted that Collector was not justified in rejecting the application for regularising the encroachment in question. According to them by virtue of Government Resolution dated 28.11.1991 the State Government had taken a policy decision to regularise encroachments made between 01.04.1978 and 14.04.1990 As the petitioners were covered by this Government Resolution, there was a vested right in the petitioners to have their encroachment regularised. The applications moved by the petitioners were required to be dealt with as per Government Resolution dated 28-11-1991. It was submitted that the Collector was not legally justified in relying upon a subsequent Government Resolution dated 12.07.2011 for refusing to regularise the encroachment. It was submitted that the earlier Government Resolution dated 28.11.1991 had not been superseded and the said Government Resolution continued to operate. Relying upon the judgment of the Hon'ble Supreme Court in Jagpal Singh v. State of Punjab (2011) 11 SCC 396, it was submitted that while issuing directions to the State Government for preparing schemes for eviction of unauthorised occupants, the provision of issuing a show cause notice and brief hearing had been stipulated. In the present case without grant of any opportunity of hearing and merely by relying upon the Government Resolution dated 12.07.2011 the impugned order had been passed. Reference was also made to the order dated 28.03.2014 passed at the Principal seat in Public Interest Litigation No. 204 of 2010 (R.V Bhuskute v. State of Maharashtra) wherein it was observed that steps should be taken as per Government Resolution dated 28.11.1991 It was therefore submitted that the impugned order passed without grant of any opportunity of hearing to the petitioners was bad in law.

5. Ms. T. Khan, learned Assistant Government Pleader for the respondents on the other hand supported the impugned order. She submitted that after considering the law laid down by the Hon'ble Supreme Court in Jagpal Singh (supra) the State Government had issued Government Resolution dated 12.07.2011 It was submitted that in the said Government Resolution there was no provision made for grant of any hearing to the illegal occupants before their eviction. She placed heavy reliance on the judgment dated 14.08.2015 in Criminal Application No. 516 of 2015 (Bhaskar Bhagwant Dikkar v. State of Maharashtra) wherein a Division Bench of this Court had issued directions to the State Government to take into consideration the judgment of the Hon'ble Supreme Court in Jagpal Singh (supra) and implement Government Resolution dated 12.07.2011 by taking possession of Gairan lands. It was then submitted that the earlier Government Resolution dated 28.11.1991 stood superseded in view of the subsequent Government Resolution dated 12.07.2011 As there was no legal right in the petitioners to have the encroachment regularised and as there was no stipulation in the said Government Resolution of granting an opportunity of hearing, such opportunity could not have been claimed by the petitioners. In any event it was submitted that grant of any hearing to the petitioners was nothing but an empty formality in view of Government Resolution dated 12.7.2011 The learned counsel placed reliance on the judgment of the Hon'ble Supreme Court in Dharampal Satyapal Ltd. v. Dy. Commissioner of Central Excise Gauhati (2015) 8 SCC 519 in that regard. As the petitioners were admittedly encroachers on Gairan land, they were liable to be evicted in view of Government Resolution dated 12.07.2011 which was a policy decision based on the judgment of the Hon'ble Supreme Court in Jagpal Singh (supra). It was therefore submitted that no useful purpose would be served even if a direction is issued to the Authorities to hear the petitioners in the matter. It was thus urged that the writ petitions were liable to be dismissed.

6. I have given due consideration to the respective submissions and I have gone through the documents filed on record. As per Government Resolution dated 28.11.1991 a policy decision was taken by the State Government to regularise encroachments made between 01.04.1978 and 14.04.1990 The manner in which such encroachments could be regularised was stipulated therein. In Jagpal Singh (supra) the Hon'ble Supreme Court noticed that various lands that vested in the grampanchayats had been encroached. It was noticed that various State Governments had permitted allotment of such lands to private persons and commercial enterprises on payment of some money. It was observed that such Government orders were illegal. In that background directions were issued to all State Governments to prepare schemes for eviction of illegal/unauthorised occupants of such land. It was observed that such schemes should provide for speedy eviction of illegal occupants after giving show cause notice and brief hearing.

7. Pursuant to this judgment, the State Government brought into effect Government Resolution dated 12.07.2011 The same was for the purpose of removal of encroachments on E-class lands. A policy decision was taken that in future such lands should be utilised only for implementing public utility services and for implementing the policies of the Central Government and the State Government. It was also resolved not to allot such lands to any individual or any private institution.

8. In R.V Bhuskute (supra) the Division Bench of this Court while entertaining a public interest litigation in the matter of removal of encroachments issued directions to the State Government to publish a list of persons who were entitled to take benefit of Clause 10 of Government Resolution dated 28.11.1991 This order passed by the Division Bench was considered subsequently by another Division Bench in Bhaskar Bhagwant Dikkar (supra). It was observed that the order passed in R.V Bhuskute (supra) did not refer to the judgment of the Hon'ble Supreme Court in Jagpal Singh (supra) as well as the Government Resolution dated 12.07.2011 The Division Bench thereafter proceeded to direct the State Government to implement the judgment of the Hon'ble Supreme Court in Jagpal Singh (supra) as well as the Government Resolution dated 12.07.2011 A further direction was issued to all Collectors in the State to recall any order of regularising any encroachment if made under clause 9(1) and 9(2) of government resolution dated 12.07.2011 and to take possession of such lands for grazing purpose.

9. It would be first necessary to consider whether the petitioners can claim a vested right for seeking consideration of their applications for regularization of encroachments in terms of Government Resolution dated 28-11-1991. This would have to be considered in the light of the fact that when the applications for regularisation were pending, another Government Resolution dated 12-7-2011 indicating a change in policy came into effect.

10. The question whether an applicant would have a vested right to seek consideration of his request on the basis of the date when he had so applied has been considered by the Hon'ble Supreme Court in Howrah Municipal Corpn. v. Ganges Rope Co. Ltd. (2004) 1 SCC 663. In said case, an application for sanction for construction was made by a Company. As the sanction was neither granted nor refused within the prescribed period, the Company had approached the High Court in that regard. The High Court had directed the Municipal Corporation to consider grant of sanction subject to fulfillment of requirements. When the application for sanction was pending, the Building Rules were amended due to which the sanction as sought was not granted. In that background while considering the question as to whether any vested right had been created in favour of the Company despite subsequent amendment to the Building Rules, it was observed by the Hon'ble Supreme Court that with long usage the word “vest” has also acquired a meaning as “an absolute or indefeasible right.” What the Company had was only a “legitimate” or “settled expectation” to obtain the sanction. The same did not create any vested right to obtained the sanction. The following observations in para 37 of the aforesaid judgment clarify the position.

“37…………………………………………………………………..What we can understand from the claim of a “vested right” set up by the respondent Company is that on the basis of the Building Rules, as applicable to their case on the date of making an application for sanction and the fixed period allotted by the Court for its consideration, it had a “legitimate” or “settled expectation” to obtain the sanction. In our considered opinion, such “settled expectation”, if any, did not crate any vested right to obtain sanction. True it is, that the respondent Company which can have no control over the manner of processing of application for sanction by the Corporation cannot be blamed for delay but during pendency of its application for sanction, if the State Government, in exercise of its rule-making power, amended the Building Rules and imposed restrictions on the heights of buildings on G.T Road and other wards, such “settled expectation” has been rendered impossible of fulfilment due to change in law. The claim based on the alleged “vested right” or “settled expectation” cannot be set up against statutory provisions which were brought into force by the State Government by amending the Building Rules and not by the Corporation against whom such “vested right” or “settled expectation” is being sought to be enforced. The “vested right’ or settled expectation has been nullified not only by the Corporation but also by the State by amending the Building Rules, Besides this, such a “settled expectation” or the so-called “vested right” cannot be countenanced against public interest and convenience which are sought to be served by amendment of the Building Rules and the resolution of the Corporation issued thereupon.”

11. From the aforesaid observations, it is clear that the petitioners merely had a “settled expectation” in the matter of regularization of their encroachment under Government Resolution dated 28-11-1991 and not any vested right.

12. It is also equally well settled that consideration of an application of the present nature would depend upon the provisions as are applicable on the date of disposal of the application. In case of a change in policy, the application would be liable to be dealt with in the manner and procedure that is prevailing on the date when such application is considered and decided. Reference in this regard can be usefully made to the following observations of the Hon'ble Supreme Court in:

[A] State of Tamil Nadu v. Hind Stone (1981) 2 SCC 205:

“While it is true that such applications should be dealt with within a reasonable time, it cannot on that account be said that the right to have an application disposed of in a reasonable time clothes an applicant for a lease with a right to have the application disposed of on the basis of the rules in force at the time of the making of the application. No one has a vested right to the grant or renewal of a lease dealt with in a particular way, by applying particular provisions. In the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application.”

[B] P.T.R Exports (Madras) Pvt. Ltd. v. Union of India (1996) 5 SCC 268:

“Grant of licence depends upon the policy prevailing as on the date of the grant of the licence. The court, therefore, would not bind the Government with a policy which was existing on the date of application as per previous policy. A prior decision would not bind the Government for all times to come. When the Government is satisfied that change in the policy was necessary in the public interest, it would be entitled to revise the policy and lay down new policy.”

[C] Madras City Wine Merchants' Association v. State of T.N (1994) 5 SCC 509:

“Legitimate expectation may arise-

(a) if there is an express promise given by a public authority; or

(b) because of the existence of a regular practice which the claimant can reasonably expect to continue;

(c) Such an expectation must be reasonable. However, if there is a change in policy or in public interest the position is altered by a rule or legislation, no question of legitimate expectation would arise.”

(emphasis supplied)

13. In the light of aforesaid legal position, it is crystal clear that the petitioners have no legal right whatsoever to insist for consideration of their applications for regularization on the basis of Government Resolution dated 28-11-1991. Though it is a fact that the applications moved by the petitioners were pursuant to the said Government Resolution, these applications were pending when the State Government came up with a fresh policy by issuing Government Resolution dated 12-7-2011. The mere fact that the petitioners had applied for regularization in terms of the earlier policy and the said applications were pending when the new policy came into force cannot be a ground to hold that the said applications ought to have been considered as per the earlier policy. The said applications, therefore, have been rightly decided in the light of Government resolution dated 12-7-2011 which is holding the field.

14. Once it is found that the petitioners had applied for regularization on the basis of Government Resolution dated 28-11-1991 and the Collector rightly considered these applications in the light of subsequent Government Resolution dated 12-7-2011, the aspect of absence of grant of any hearing before passing the impugned order pales into insignificance. The impugned order merely states that in the light of the directions issued by the Division Bench in Bhaskar Bhagwant Dikkar (supra) and Government resolution dated 12-7-2011, the applications were being rejected. The petitioners had no vested right whatsoever to have their applications considered in the light of Government resolution dated 28-11-1991. The policy in question having undergone a change, insistence for grant of hearing in these circumstances would be nothing but an empty formality. The claim for regularisation under Government Resolution dated 28-11-1991 now not being possible in view of the subsequent Government Resolution dated 12-7-2011, no useful purpose would be served by directing grant of hearing to the petitioners. There could not be any other conclusion than one arrived at in the impugned orders. The observations of the Hon'ble Supreme Court in Dharampal Satyapal Ltd. (supra) support aforesaid conclusion.

15. In view of aforesaid discussion, it will have to be held that the impugned orders do not suffer from any legal infirmity whatsoever. The petitioners had claimed entitlement as per an earlier policy which pending consideration of the applications underwent a change. Under the policy which was in force when the applications were decided, there was no right whatsoever for the encroachment being regularized. There is no case made out to interfere in writ jurisdiction. The writ petitions stand dismissed by discharging the Rule and leaving the parties to bear their own costs.

Source : https://www.casemine.com/judgement/in/57b43eecbc416857b533385e?query=grazing%20land