Bombay High Court in Tulshiram & Ors. v. State of Maharashtra & Ors. [Order dated 11.06.2019]

IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR 

 WRIT PETITION NO.2871 OF 2018 

1. Tulshiram s/o Sudam Manwar, Aged about 50 years, Occ. Agriculture Labour. (Power of Attorney). 
2. Gabaji s/o Bhivaji Gaikwad, Aged about 50 years, Occ. Agriculture Labour. (Power of Attorney). 
3. Hiraman s/o Lodji Padghan, Aged about 45 years, Occ. Agriculture Labour. 
4. Tukaram s/o Dharmaji Gaikwad, Aged about 48 years, Occ. Agriculture Labour. 
5. Gautam s/o Sudama Manwar, Aged about 45 years, Occ. Agriculture Labour. 
6. Vinod s/o Tulshiram Padghan, Aged about 46 years, Occ. Agriculture Labour. 
7. Laxman s/o Sonaji Kamble, Aged about 46 years, Occ. Agriculture Labour. 
8. Shriram s/o Chandrabhan Khandare, Aged about 43 years, Occ. Agriculture Labour. 
9. Devrao s/o Vishwanath Padghan, Aged about 42 years, Occ. Agriculture Labour.
10. Sushilabai Sangeet Padghan, Aged about 39 years, Occ. Agriculture Labour. 
11. Vishnu s/o Mahadev Manwar, Aged about 37 years, Occ. Agriculture Labour. 
12. Pritham s/o Bhiwaji Gaikwad, Aged about 38 years, Occ. Agriculture Labour. 
13. Bhagartabai Bhagwan Padghan, Aged about 47 years, Occ. Agriculture Labour. 
14. Ramabai Panjab Thete, Aged about 39 years, Occ. Agriculture Labour. 
15. Shobha Santosh Belkhede, Aged about 37 years, Occ. Agriculture Labour. 
16. Annapurnabai Kundlilk Padghan, Aged about 45 years, Occ. Agriculture Labour. 
17. Dagadu s/o Dharma Gaikwad, Aged about 49 years, Occ. Agriculture Labour. 
18. Gulab s/o Sadashiv Pagdhan, Aged about 44 years, Occ. Agriculture Labour. 
19. Waman s/o Mahadu Padghan,, Aged about 47 years, Occ. Agriculture Labour. 

All r/o Village Bitoda (Bhoyar), Tah. Mangrulpir, District Washim. 

.....Petitioners

Versus 

1. State of Maharashtra, Through the Collector, Washim, Tah. & District Washim. 
2. The District Superintendent of Police, Washim, Tah. and District Washim. 
3. The Tahsildar, Mangrulpir, Tah. Mangrulpir, District Washim. 
4. The Block Development Officer, Panchayat Samiti, Mangrulpir, Tah. Mangrulpir, District Washim. 
5. The Inspector, Police Station, Asegaon, Tah. Mangrulpir, District Washim. 

....Respondents

Shri M.M. Sawang, Advocate for the Petitioners. 

Shri S.M. Ghodeshwar, A.G.P. for the Respondents.

CORAM : SUNIL B. SHUKRE & S.M. MODAK, JJ.

DATE : 11th JUNE, 2019.

ORAL JUDGMENT : (Per Sunil B. Shukre, J.) 

Rule. Rule made returnable forthwith. Heard finally by consent.

02. There is no dispute about the fact that all these petitioners, who state that each of them are in possession of smaller piece of land admeasuring about 0.81 R, forming part of a larger piece of land and cultivating the same, are indeed in such possession and have been cultivating these pieces of land for long. There is also no dispute that all these pieces of land are recorded as "Gairan" or common grazing lands meant for common benefit of a village. For regularizing such possessions, however, there are prohibitions arising from the directions issued from time to time by the Hon'ble Apex Court. These directions have been summarized in one case, the case of Jagpal Singh and others vs. State of Punjab and others - (2011) 11 SCC 396. According to these directions, the common village land should not be allowed to be utilized for any other purpose than the purpose which serves the common good of the village community and as such, the Hon'ble Apex Court has directed that encroachments on such lands must not be regularized.

03. Following these directions, the State Government has framed a new policy vide Government Resolution, dated 12/07/2011 and according to this policy, the encroachment on "Gairan" land by anybody cannot be permitted to be regularized, irrespective of the period of time for which the encroachment is standing.

04. In the present case, it is the contention of the petitioners that they are in possession by way of encroachments made upon the "Gairan" land for last more than 40 years. But, long standing possession founded upon an encroachment on a "Gairan" land is not a ground for regularization of the possession. This is clear, as we have seen just now, from the directions given by the Hon'ble Apex Court in the case of Jagpal Singh (supra) and also the new policy framed by the Government vide Government Resolution, dated 12/07/2011.

05. In the case of Bhagwan Kisan Wagh vs. State of Maharashtra and others in Writ Petition No.6466/2015 decided on 21/07/2016 by the learned Single Judge of this Court, on which reliance has been placed by the State Government (paragraph 6 of the reply), it has been held that it is the policy prevailing on the date when an application or plea for regularization is made, that must be followed for regularizing or not regularizing the encroachments and not the policy which was prevailing on the date on which the encroachments were made. We have no reason to differ with the view so taken, especially when the Hon'ble Apex Court has frowned upon any move made to regularize encroachments on common village land, which is the "Gairan" land in the present case. So, the argument that the case of the petitioners be treated as per the old policy, no longer holds any water.

06. In view of the admitted factual position and the applicable law, as discussed earlier, we find that prayer of the petitioners regarding issuance of directions to the State Government to regularize their encroachments cannot be allowed and the grievances of the petitioners in this regard cannot be entertained. 

07. The petition stands dismissed. Rule is discharged with no order as to costs.

                            (S.M. Modak, J.)                         (Sunil B. Shukre, J.)