Bombay HC in Suhas Jaganath Langade vs. State Of Maharashtra [13.01.2023]

IN THE HIGH COURT OF JUDICATURE AT BOMBAY 

BENCH AT AURANGABAD 

WRIT PETITION NO.488 OF 2023 

SUHAS JAGANATH LANGADE 

VERSUS 

THE STATE OF MAHARASHTRA THROUGH ITS PRINCIPAL SECRETARY AND OTHERS

Advocate for Petitioner : Mr. Kishor D. Khade 

AGP for Respondents: Mr. P.K. Lakhotiya. 

CORAM : MANGESH S. PATIL & S.G. CHAPALGAONKAR, JJ.

DATE : 13 JANUARY 2023 

ORDER :-

1. The petitioner is apparently espousing the cause of some stranger, who is not even made a party to this petition.

2. Learned advocate for the petitioner submits that since the petitioner was successful in obtaining the order of this court in his own case, considering the plight of that stranger, he has taken the lead in filing this petition.

3. He also cites the decision in the matter of "Indian Banks' Association vs. M/s. Devkala Consultancy Service & others" (Civil Appeal No. 4655 of 2000) to buttress his submission that the petitioner is taking up a cause of a stranger in the peculiar facts and circumstances and the question of locus should not prevent this Court from exercising powers under Article 226 of the Constitution of India.

4. Learned AGP strenuously opposes the petition on the ground {2} 932 sr.no..odt of locus.

5. True it is that in the matter of Indian Banks' Association, a Chartered Accountant had raked up the public cause. The objection on the ground of locus standi was refuted by the Supreme Court.

6. In the matter in hand, the petitioner is espousing the individual cause of a family, which is seeking allotment of a piece of land from the Gairan. Apart from the fact that, in allotment of such Gairan lands, a stern view is taken by the Supreme Court in the matter of Jagpal Singh and others vs. State of Punjab and others and (2011)11 SCC 396, and even this Court in Suo-motu PIL No. 2 of 2022 at the Principal Seat, has expressly directed not to regularize the encroachments on Gairan Land, there is serious doubt about the entitlement of that family to claim allotment of a plot.

Besides, the language being used by the petitioner in correspondence dated 5.12.2022 is also offending. We do not express anything more.

6. The petitioner, by his communication dated 5.12.2022 was praying the respondents to take appropriate action on the stranger's request and has approached this Court on 7.12.2022.

7. All these circumstances discussed here-in-above clearly demonstrate that the petitioner is a busy-body. No writ as prayed for by him can be issued.

8. Writ petition is dismissed.

[S.G. CHAPALGAONKAR, J]                                         [MANGESH S. PATIL, J]

Bombay HC: Ensure no further encroachments or regularisations on grazing lands [06.10.2022]

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

SUO MOTU PUBLIC INTEREST LITIGATION NO. 2 OF 2022

High Court on its Own Motion                                                         } Petitioner

versus

The State of Maharashtra and Ors.                                                     } Respondents

Mr. Ashutosh M. Kulkarni, Amicus Curiae.

Mr. P. P. Kakade, Government Pleader with Mr. M. M. Pabale, AGP for State.

CORAM: DIPANKAR DATTA, CJ.

                 MADHAV J. JAMDAR, J.

DATE: OCTOBER 6, 2022

P.C.:

1. In deference to our order dated 15th September 2022, Mr. R. S. Chavan, Joint Secretary, Revenue and Forest Department, Government of Maharashtra has filed an affidavit.

2. Under paragraph 6 of such affidavit are 3 (three) tables. The first table refers to the number of encroachments on Gairan/Government lands that have been removed between 12th July 2011 and 15th September 2022. The number is 24,513. The second table refers to the extent of regularization of encroached area till 12th July 2011. The number indicated is 12,652. However, the most alarming feature is found in the third table, which suggests that there are 2,22,153 illegal constructions on Gairan lands and the approximate encroached area measures 10,089 hectares.

3. Mr. Kulkarni, learned Amicus Curiae is right in pointing out that neither the basis for regularization of 12,652 encroachments till 12th July 2011 has been indicated in the affidavit nor has the deponent indicated with any degree of clarity what step/measure is in the contemplation of the Government of Maharashtra to remove the high number of encroachments, i.e., 2,22,153, and make 10,089 hectares land free from encroachments.

4. Having perused the affidavit of the Joint Secretary and bearing in mind the submissions advanced by Mr. Kulkarni, learned Amicus Curiae and Mr. Kakade, learned Government Pleader appearing for the respondents, we are of the considered opinion that there has only been a partial compliance of the directions issued by the Supreme Court in its decision in Jagpal Singh and Ors. vs. State of Punjab and Ors., reported in (2011) 11 SCC 396. 

5. In view of the aforesaid satisfaction reached by us, we make the following order: -

(i) There shall be no further regularization of any encroachment by any authority/officer of the Government until further orders of this Court, except in the manner directed by the Supreme Court in Jagpal Singh (supra). 

(ii) The Government of Maharashtra shall file a further affidavit indicating therein the basis for regularization of 12,652 encroachments till 12th July 2011 within 4 (four) weeks from date. 

(iii) In such affidavit, the Government of Maharashtra shall refer to the policy taken by it for removal of 2,22,153 encroachments on Gairan together with the road-map which it proposes to draw so as to facilitate removal of all encroachments by the end of this year. 

(iv) The Government of Maharashtra shall ensure that no further encroachments on Gairan lands take place, failing which this Court may be constrained to take appropriate steps against the persons responsible for checking that such encroachments do not take place. 

(v) It would desirable if a notice is issued by the Government of Maharashtra informing all its officers posted in the appropriate departments to keep a check on further encroachments on Gairan lands. 

6. List the PIL petition on 17th November 2022 for reporting compliance of this order

(MADHAV J. JAMDAR, J.)                                                         (CHIEF JUSTICE)

Bombay HC: Remove encroachment from gairan land [21.09.2022]

IN THE HIGH COURT OF JUDICATURE AT BOMBAY 

NAGPUR BENCH, NAGPUR. 

CIVIL WRIT PETITION NO. 4498 OF 2022 

Anandrao Mahadeo Wankhede and ors. 

 -Vs- 

 The State of Maharashtra and ors.

Mr.R.H.Kamble, counsel for the petitioners. 

Mr.K.L.Dharmadhikari, A.G.P for respondent Nos.1 to 3. 

CORAM : SUNIL B.SHUKRE & G.A.SANAP, JJ.
DATE : 21.09.2022. 

1. Heard.

2. The petitioners are occupying e-class gairan land by making an encroachment upon it. It appears that the petitioners have made some construction on a portion of land and on the remaining part of the land, the petitioners have been making cultivation. According to the learned counsel for the petitioners, the petitioners are entitled for retention of land and also it's regularization as their case would be covered by section 2 of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013, (for short the Act, 2013). They submit that there is a provision made in Section 22A of Maharashtra Land Revenue Code, 1966 (for Short the "MLR Code") for diversion of any land for public purpose and the public purpose would only mean any of the purposes mentioned in section 2 of the Act of 2013. Learned counsel for the petitioners further submit that tree plantation is not a public purpose, while allotment of land to the petitioners, being in the nature of rehabilitation is a public purpose and, therefore, the gairan land can be diverted for that purpose under Section 22A of the MLR Code. He also submits that till it is done, the possession of the petitioners in respect of the gairan land, which is peaceful would have to be protected by this Court.

3. While, it is true that under Section 22A(2) of the MLR Code gairan land can be diverted for any public purpose or public project, the analogy being made by the learned counsel for the petitioners between the public purpose contemplated under the MLR Code and the public purpose contemplated under the Act of 2013, is skewed. The Act of 2013 regulates acquisition of private lands for public purpose and compensation to be paid for such acquisition, while Section 22A of the MLR Code does not deal with the acquisition of private lands, but deals with diversion of the public lands like the gairan land for public purpose. It does not contemplate granting of any compensation to anyone, even to an encroacher, for such diversion. Therefore, the provisions made in Section 2 of the Act of 2013 cannot be taken recourse to, to raise an objection that the gairan land cannot be diverted for the purpose of tree plantation on the ground that tree plantation is not a public purpose. In fact, we must say it here that it defies logic to say that plantation of trees on any public land, which achieves greater public interest and public welfare, is not a public purpose and therefore, the tree plantation must not be allowed and the possession of encroachers like the petitioners be protected.

4. There is a law settled long back by the Supreme Court in the Case of Jagpal Singh and ors .Vs. State of Punjab and ors. reported in 2011(11) SCC 396, wherein the Supreme Court has held that the lands like gairan lands are public utility lands of the villages and are used for the common benefit of the villagers of the village such as ponds, storage of harvested grain, grazing ground for the cattle, threshing floor, maidan for playing by children, carnivals, circuses, public festivals, recreational purposes, cart stands, water bodies, passages, cremation ground or graveyards, and so on and so forth.

5. It has further held that these lands were generally treated as inalienable in order that their status as community land was preserved. The Apex Court has also noted that after the independence, unfortunately, such gairan lands became object of illegal use by some unscrupulous persons using muscle power, money power or political clout and the result was that large chunks of these lands were converted into private use. It was because of such illegal activities being carried out on these gairan lands, that the Apex Court gave directions to all the State Governments in the country that they shall prepare schemes for eviction of illegal/unauthorised occupants of these lands and their regularisation be not permitted save in exceptional cases as for e.g, where lease is already granted under some Government notification to a landless labourer or any member of the Scheduled Castes/Scheduled Tribes but this was only to be done in exceptional cases or where there is already a school, dispensary or other public utility on the land.

6. The petitioners are private persons, who are by making encroachments on the gairan land, are illegally cultivating the gairan land. Admittedly, they have not been granted any lease, under any Government notification. The petitioners also do not fall under any other eligible categories or persons for seeking regularisation of their illegal possession of the gairan land. As such, none of the petitioners is entitled to any relief as claimed in this petition. This is not a fit case for making any intervention. The petition stands summarily dismissed.

                        (G.A.SANAP,J)                                                  (SUNIL B. SHUKRE,J) 

Bombay HC: Need to be informed on compliance of the Jagpal Singh directions [15.09.2022]

IN THE HIGH COURT OF JUDICATURE AT BOMBAY 

CIVIL APPELLATE JURISDICTION 

SUO MOTU PUBLIC INTEREST LITIGATION NO. 2 OF 2022 

High Court on its Own Motion                                                                  Petitioner 

versus

The State of Maharashtra and Ors.                                                         Respondents 

Mr. Ashutosh M. Kulkarni, Amicus Curiae. 

Mr. P. P. Kakade, Government Pleader with Mr. M. M. Pable, AGP for State. 

CORAM: DIPANKAR DATTA, CJ. & MADHAV J. JAMDAR, J.

DATE: SEPTEMBER 15, 2022 

1. Mr. Kulkarni, learned amicus curiae has placed before us a decision of the Supreme Court in Jagpal Singh and Ors. vs. State of Punjab and Ors., reported in (2011) 11 SCC 396. Referring to paragraph 23 of the decision, Mr. Kulkarni submits that a report ought to be called for from the State Government in respect of compliance of the directions contained in such paragraph. Paragraph 23 of the decision reads as follows: -

"23. Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/ unauthorised occupants of the Gram Sabha/Gram Panchayat/poramboke/shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/UnionTerritories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show-cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularising the illegal possession. Regularisation should only be permitted in exceptional cases e. g. where lease has been granted under some government notification to landless labourers or members of the Scheduled Caste/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land."

2. We need to be informed by the State of Maharashtra as regards compliance of the aforesaid directions. The Principal Secretary, Revenue and Forest Department is directed to file an affidavit within 2 (two) weeks from date disclosing therein compliance of the same, if any. The Principal Secretary shall also include in the affidavit relevant data upon identification of illegal/unauthorized constructions on 'gairan' lands.

3. List the PIL petition on 6th October 2022.

Date: 2022.09.16 

Bombay HC in Govardhan Meshram vs. State of Maharashtra & Ors. [03.08.2021]

IN THE HIGH COURT OF JUDICATURE 

AT BOMBAY NAGPUR BENCH, NAGPUR. 

CIVIL WRIT PETITION NO. 2714 OF 2021 

Govardhan Mahadeo Meshram -Vs- State of Maharashtra and ors. 

Ms. Rani Nitnaware, counsel for the petitioner. 

Ms. N.P. Mehta, A.G.P for respondent Nos. 1 to 6. 

CORAM : SUNIL B.SHUKRE & ANIL S.KILOR, JJ.

DATE : 03.08.2021

1. Heard learned counsel for the petitioner.

2. The petitioner is claiming that he is an ex-serviceman and also landless labourer and a person belonging to scheduled caste and therefore, he is entitled to allotment of E- class land, which is a Gairan land on lease.

3. Such case of the petitioner is not covered by the ratio of Jagpal Singh and others v. State of Punjab and ors., reported in (2011) 11 SCC 396 and does also not fall in the exceptions carved out in Section 22A of the Maharashtra Land Revenue Code, 1966. In order to avail of the protection granted to certain categories of persons as laid down in the case of Jagpal Singh and others v. State of Punjab (supra), the claimant must be a person, who has already been granted lease under some Government Notification and that such lease must Kavita be granted to him on the ground that he is a landless labourer or a member of the scheduled castes and scheduled tribes. The other exception made in the case of Jagpal Singh and others v. State of Punjab (supra) is that of a lease already granted to a school or dispensary or any other public utility.

4. In the present case, basically no lease of E-class land has been granted to the petitioner, and if this is so, the question of considering the claim of the petitioner on the touch stone of Jagpal Singh and others v. State of Punjab (supra) would not arise. This is more so because Section 22A of the Maharashtra Land Revenue Code, 1966 bars the diversion of E-class land for any private use. There is no dispute about the fact that the allotment of E-class land has been claimed by the petitioner for private use.

5. This is also the view taken by us in a recent judgment delivered in a bunch of Writ Petition Nos. 2552, 2553, 2555 and 2557 of 2021, decided on 26/07/2021. There is no substance in the petition, the petition stands summarily dismissed. No costs. 

                (ANIL S. KILOR,J)                                                             (SUNIL B. SHUKRE,J)

Bombay High Court in Bhima Shivram Salunke & Ors. vs. State of Maharashtra & Ors. [12.02.2020]

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 

WRIT PETITION NO.2267 OF 2018 

Bhima Shivram Salunke and 40 Others                                                 ...Petitioners 

 Versus 

State of Maharashtra through Principal Secretary, Revenue and Forests Department, Mantralaya Annex, Mumbai, MS. 400 032 and 4 Others                                                     ...Respondents 

Mr. V.Y. Bhide, Advocate for the Petitioners. 

Mr. A.S. Shinde, AGP for Respondent Nos.1 & 2. 

Mr. P.V. Barde, Advocate for the Respondent Nos.3 & 4.

CORAM : ROHIT B. DEO, J.

DATED : 12th FEBRUARY, 2020.

ORAL JUDGMENT:

Rule. Rule made returnable forthwith. Heard finally with consent of the parties.

2. The petitioners, who concededly are encroachers, are assailing the order dated 05.12.2017 rendered by respondent 5 in revision, whereby and whereunder respondent 5 held that the notice dated 18.05.2015 issued by respondent 4, Estate Manager, Maharashtra State Farming (Corporation) calling upon the petitioners to vacate the encroached land, is legal.

3. The petitioners contend that the encroached land is occupied by the petitioners before 1990, and that, in view of the policy of the State Government as is manifested in the Government Resolutions dated 28.11.1991 and 14.08.2001, the petitioners are entitled to regularization of the encroached land. The petitioners contend that they belong to the Bhilla Adivasi community which is a scheduled tribe.

4. The petitioners contend that some of the petitioners or their predecessors were parties to Writ Petition 1778 of 1986 Pradip D. Prabhu Vs. State of Maharashtra and Others, in which the Hon'ble Supreme Court passed an order dated 07.03.1995 directing the State of Maharashtra to appoint responsible officers in different districts to examine the claims of Adivasis who are in possession of land and decide their claims for regularization in accordance with law and the extant instructions. The Hon'ble Supreme Court further observed that while deciding rights of the adivasis for regularization, the concerned officers shall give an opportunity to them to be heard and to adduce evidence in support of their claims and till the matters are finally disposed of, the adivasis shall not be dispossessed. The petitioners contend that notwithstanding the directions issued by the Hon'ble Supreme Court, the State Government has not initiated steps to regularize the possession of the adivasis qua government lands.

5. The petitioners contend that applications were preferred before the authorities of the State Government seeking regularization of possession over the government lands, which applications were kept in cold storage. The aadivasis, including most of the petitioners, approached the Hon'ble High Court in Writ Petition 454 of 2001 under the aegis of an unregistered organization named and styled as "Bhumi Hakka Andolan Samiti". The petitioners submit that the High Court disposed of Writ Petition 454 of 2001 by observing thus:

"We however observe that if the Government Officers have initiated the proceedings, as per the applications of the petitioners, it is desired that the Government shall complete such enquiries in accordance with law and policy decision taken by the Government as early as possible. It is also desired that the procedure and the protection offered by the Apex Court in Writ Petition No.1778 of 1986 should also be looked into by the Government Officers while disposing of the applications made by the members of the petitioner association."

6. The petitioners contend that the State Government did not take the directions issued by the High Court seriously and the enquiry was not taken to the logical end, although the aadivasis including the petitioners were willing, and indeed eager, to adduce evidence in support of their claim. Dissatisfied with the inaction of respondent 2, the petitioners and others filed Revision 309 of 2004 before the Additional Divisional Commissioner, Nashik, which came to be allowed vide order dated 27.09.2011 and the Sub- Divisional Ofcer, Shrirampur was directed to conduct and complete the enquiry. The petitioners contend that the Sub- Divisional Officer has neither completed the enquiry nor has otherwise decided the matter and that it is safe to assume that the claim of the petitioners is pending. The petitioners submit that while respondents 1 and 2 and their subordinate officers did not decide the lawful claims of the petitioners, respondent 4-corporation issued communication dated 18.05.2015 directing the petitioners to vacate the encroached land. It is this communication dated 25.05.2015, which is assailed in the present petition.

7. The corporation has filed an affidavit in response dated 05.12.2019. The corporation contends that in proceedings under the Maharashtra Agricultural Land (Ceiling on Holding) Act, 1961 (Ceiling Act), the lands owned by Godavari Sugar Mills Ltd were declared surplus, as is discernible from the gazette notification dated 14.03.1963. The land covered by the government notification initially vested with the State Government free from all encumbrances. The State Government took possession of the land from Godavari Sugar Mills Ltd on 20.05.1968 and delivered the same to the corporation on even date for cultivation and management under Section 28 of the Ceiling Act. The corporation contends that the land situated in village Rastapur and other lands which were owned by Godavari Sugar Ltd vested with the corporation in occupancy rights in view of the order of grant dated 13.08.1970, which is issued in exercise of power under Section 28(1AA) of the Ceiling Act.

8. The corporation contends that the land is duly mutated in the 7/12 extract and the relevant entry is 2927. The corporation contends that the land which is encroached by the petitioners forms part or portion of the land which initially vested with the State Government and then vested in ownership rights in the corporation in view of the order of grant dated 13.08.1970. In essence, the submission of the corporation is that the land which is encroached by the petitioners is not government land and is owned by the corporation.

9. The corporation contends that a policy decision was taken to make available land owned by the corporation for joint cultivation and tenders were published. Successful bidders were finalized and agreements were executed. In the process, the encroachment made by the petitioners came to light which has constrained the corporation to issue notice dated 18.05.2015. The corporation contends that the petitioners assailed the notice/s dated 18.05.2015 in Writ Petition 5523 and 5524 of 2015, which came to be disposed of by the learned Division Bench vide order dated 02.08.2016. It would be relevant to reproduce paragraph 3 of the order of the Division Bench.

"3. It appears that pursuant to order passed by the Apex Court and this Court in the proceedings referred to above, some panchnamas were conducted, however, no decision was taken by the State Government for regularization of their possession over the land Respondent - State Government may take decision upon the same as expeditiously as possible preferably within six months from the date of this order. Before taking any decision the authority concerned of State shall hear the petitioners as well as the Corporation. Respondents - Corporation cannot take law in its hand. Notice issued by the Corporation itself suggest that if petitioners do not remove their constructions then the Corporation would take action as per the Government Rules which would presuppose that they would follow procedure of law. In that case, the petitioners may take up proceedings as may be permissible in law."

 

10. The corporation contends that in view of the order of the learned Division Bench, which petitioners invited in the context of the submission that the issue of regularization was pending, the respondent 5 decided the issue and held that the action of eviction initiated by the corporation by issuing notice dated 18.05.2015, is legal.

11. The corporation contends that in view of the provisions of Section 40 of the Ceiling Act, the corporation is authorized to remove the encroachment. Paragraph 6 of the affidavit in response filed on behalf of the corporation reads thus:

"6) Answering respondents states and submits that, after giving sufficient opportunity and vouching entire record available before Hon'ble Minister vide order dated 05.12.2017 Hon'ble Minster was pleased to hold that notices issued by Corporation answering respondents are legal and valid. In such circumstances petitioners have no right to remain in possession on the encroached portion. Respondent No.2 is having every authority to remove encroachment as per Section 40 of Maharashtra Agricultural (Ceiling on Holding) Lands Act, 1961. As per the provisions of Section 21 the said Act, the own lands of industrial undertakings and lands leased to them were declared as surplus and were taken in possession by the State Government. As per Section 21(2) and (4) of the said Act, the said surplus lands are vested with the State Government free from all encumbrances. Thereafter as per Section 28 of the Act those lands were given to Respondent Corporation for management and cultivation. Answering Respondent has also paid necessary occupancy price of the said lands to State Government. Thus, these lands since notification absolutely vests with the answering Respondents Corporation free from all encumbrances. therefore it is not a Government land. Therefore, now it is not a Government Land. The pleadings of petitioners that the land belongs to State Government are specifically and persistently denied by this Respondent. In above mentioned situation the Government Resolutions dated 28.11.1991 and 14.08.2001 as referred by petitioners are not applicable to the land owned and possessed by Respondent Corporation. The Government Resolutions are very clear and it unequivocally states that the encroachments on Government land only can be regularized. Petitioners are making factually incorrect and frivolous statement about the area of encroachment. In fact there is no such encroachment as alleged by petitioners to the extent of area. The foregoing paragraph clarifies the situation. Reference to judgment in SLP Civil No.1778/1986 of Hon'ble Apex Court dated 07.03.1995 and Writ Petition No.454/2001 is not applicable in case in hand as lands are owned by Corporation and not by the State Government. Claim of petitioners that land should be allotted to them is beyond provisions of Maharashtra Agricultural (Ceiling on Holding) Lands Act, 1961, said demand as not within four corners of law cannot be granted."

12. The petitioners have filed a rejoinder affidavit dated 10.02.2020, which is handed over across the bar. The petitioners assert that the notice dated 18.05.2015 is issued only to 18 out of 41 petitioners. The petitioners contend that the mutation entry 2927 makes no reference to order of grant dated 13.08.1970 and further the copy of order dated 13.08.1970 is incomplete and illegible. The alternate contention in the rejoinder affidavit is that the order dated 13.08.1970 was not acted upon and that the proposal to lease the land covered by the grant order for joint cultivation is violative of the terms and conditions of the grant. It is further stated that the corporation did not pay the occupancy price till 2005 and therefore, the order of grant dated 13.08.1970 does not confer title in favour of the corporation. A desperate submission is finally made that the petitioners have perfected title by adverse possession.

13. Before considering the submissions canvassed on behalf of the petitioners, it would be necessary to note the articulation of the Hon'ble Supreme Court in Jagpal Singh and Ors Vs. State of Punjab and Ors, 2011 AIR SCW 990 .

14. The Hon'ble Supreme Court cautioned that illegal encroachment on Gram Panchayat land, which invariably occur in collusion with the State Machinery and the Gram Panchayat, must be dealt with iron hand and the blatant illegalities cannot be condoned. The Hon'ble Supreme Court observed that even if houses are built on the encroached land, the construction must be demolished and the possession of the encroached land must be handed over to the Gram Panchayat. While parting with the judgement, the Hon'ble Supreme Court issued the following directions:

"22. Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha / Gram Panchayat/Poramboke/Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has 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 public utility on the land."

15. The petitioners are relying on Government Resolutions dated 28.11.1991 and Government Resolution dated 14.08.2001. Perusal of the said government resolutions would reveal that it is only the encroachment on government land stricto sensu, which is the subject matter of two government resolutions. By virtue of government resolutions dated 28.11.1991, the State Government took policy decision to regularize encroachments. The policy underwent a change in view of the subsequent government resolution dated 12.07.2011. The implication of the change in policy is considered by a learned Single Judge in Bhagwan Kisan Wagh and Ors Vs. State of Maharashtra and Ors, 2016(5) ALL MR 847, thus:

"8] 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.

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."

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. "

16. The implication of the change in the policy apart, the question is whether there is any legal right existing in favour of the petitioners, even for consideration of regularization, much less a vested legal right. In my considered view, the answer must be in the negative. The government resolutions on which reliance is placed, has no applicability to the factual matrix. Notwithstanding the desperate argument, that in view of the delayed payment of the occupation charges, the corporation is not the owner of the land in question, I have no hesitation in holding that in view of the provisions of the Ceiling Act and the order dated 13.08.1970, the land which is encroached vests in the corporation, which is a distinct juristic entity. The land owned by the corporation cannot be equated with the land owned by the State Government, and therefore, the submission which is constructed on the edifice of the government resolutions needs consideration only for rejection.

17. In response to a specific query, the learned counsel for the petitioners fairly states that the only basis of the claim for regularization is the government resolutions. In view of my finding, that the government resolutions do not take within their land owned by the corporation, and the refutable and indubitable position that the encroached land is owned by the corporation, there cannot be even an iota of doubt that the petitioners have no right to claim regularization of the encroached land.

18. I cannot be unmindful of the ground reality that dishonesty is often rewarded. The petitioners are encroachers and openly and if I may say so audaciously, claim to have encroached on the government land. The policy of regularization of encroachment, even if it is assumed that the validity of such policy is not in issue, would have to be strictly construed. The petitioners were under heavy burden to demonstrate that they have a semblance of right to protect the illegal possession. The petitioners have miserably failed to discharge the burden. The petition is wholly substance-less and is rejected.

19. This Court hopes that the action of eviction shall be taken to the logical end, as expeditiously as possible and in any event within 90 days.

20. At this stage, the learned counsel for the petitioners states that he is instructed by all the petitioners to undertake that the possession of the entire encroached land shall be voluntarily and peacefully delivered to the corporation on or before 30.03.2020. The learned counsel for the petitioners further states that the petitioners are aware that breach of the undertaking may entail initiation of contempt of Court proceedings.

21. In view of the undertaking, the possession of the petitioners is protected till 30.03.2020.

22. The learned counsel for the petitioners states that the petitioners shall also file in the registry individual undertakings within two weeks. It is made clear that whether or not individual undertakings are filed, the statement made on behalf of the petitioners by the learned counsel shall continue to operate as an undertaking solemnly given to this Court.

23. Rule is discharged.

Bombay High Court in Ashru vs. State of Maharashtra [26.07.2021]

IN THE HIGH COURT OF JUDICATURE AT BOMBAY 

NAGPUR BENCH, NAGPUR.

CIVIL WRIT PETITION NO.2553 OF 2021 

(Ashru s/o Piraji Ghewande (Died) through its L.R. Gunfabai Wd/o. Ashru Ghewande 

Vs. 

State of Maharashtra, through its Secretary, Department of Revenue & Forest, Mantralaya 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 6-Section 22A of the Code of 1966 shall be vested in the State Government. Therefore, passing of any un- warranted 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.

Bombay High Court in Pralhad vs. State of Maharashtra [26.07.2021]

IN THE HIGH COURT OF JUDICATURE AT BOMBAY 

NAGPUR BENCH, NAGPUR. 

CIVIL WRIT PETITION NO.2552 OF 2021 

(Pralhad s/o. Gyanu 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 him 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 his encroachment, as his 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 him 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 his favour. Admittedly, the petitioner is seeking regularization of his 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 his encroachment by allotting the land on lease to him.

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 him 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.

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.)

Bombay High Court in Popat Laxman Khandagale v. State of Maharashtra & Ors. [Order dated 13.02.2019]

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1814 OF 2019 

Popat Laxman Khandagale, Age: 62 years, Occ: Agri., R/o. Belgaon, Tq. Ashti, District Beed.                                                                                                                ...PETITIONER

VERSUS 

1. The State of Maharashtra, Through its Secretary, Revenue and Forest Department, Maharashtra State,Mantralaya, Mumbai- 400 032. 
2. The Divisional Commissioner, Revenue Department, Aurangabad. 
3. The District Collector, Beed, Collector Office, Beed. 
4. Sub Divisional Officer, Sub Division Office, Patoda, District Beed. 
5. The Tahasildar, Tahasil Office, Ashti, Tq. Ashti, District Beed. 

...RESPONDENTS 

Mr Vinay B. Anjanwatikar, Advocate for petitioner; 

Mr A.R. Kale, A.G.P. for respondent/State 

CORAM : PRASANNA B. VARALE AND S.M.GAVHANE, JJ.


DATE : 13th FEBRUARY, 2019  

ORAL ORDER:


Heard learned Counsel appearing for the petitioner.

2. The petitioner is one of the encroachers and copy of panchnama placed on record dated 31st August, 2018 at Exhibit-A show that Talathi, Saja Belgaon recorded the fact of encroachment of the encroachers and name of the petitioner finds place at Serial No.6 in the list of encroachers. The petitioner himself has placed on record the copy of the proceeding sheet, wherein Circle Officer refers to proposed initiation of action, namely, issuance of notice to the encroachers and to take steps for removal of the encroachment and then submission of report of action taken.

3. Learned Counsel for the petitioner then by inviting our attention to the applications/ representations submitted to the Tahasildar, Ashti on 17th February, 2014, to the Divisional Commissioner, Aurangabad Division, on 25th October, 2018 and to the Collector, Beed on 21st September, 2018 as well as to the Sub Divisional Officer, Sub Division, Patoda, and Tahasildar, Ashti on the same day. He further submitted before us that the applications are pending before the authority for decision. The only anxiety of the petitioner is, these applications are pending before the competent authority for considerable long period and no decision is taken on these applications.

4. This was limited grievance, the petition was taken up for disposal at admission stage.

5. Learned A.G.P. for the respondents - authorities submitted that in view of the judgment of the Hon'ble the Apex Court in the matter of Jagpal Singh and others vs. State of Punjab and others, reported in 2011 AIR (SC) 1123, State Government has to act promptly in the matter of eviction of illegal occupants and the petitioners are encroachers, as such, they cannot safely be stated as illegal occupants. We have gone through 1814.19wp the above referred judgment of the Hon'ble the Apex Court. It may not be out of place to refer the observations of the Hon'ble the Apex Court reflected in paragraph-22, which reads thus:

"22. Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/Poramboke/Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession.

Regularization should only be permitted in exceptional cases e.g. where lease has 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 public utility on the land."

6. Learned Counsel for the petitioner has placed on record Government Resolution dated 12th July, 2011. This resolution refers to the decision of the Apex Court. This resolution also refers to the need of special action plan. In the resolution itself, it is stated in clause-6(2) that in the special action programme, notice be issued to the illegal occupants/encroachers and then by way of brief hearing, further action of removal of incompetent encroachments be initiated immediately. The resolution also refers to certain terms and conditions.

7. It was the submission of learned A.G.P that as the petitioner himself admitted that he is  encroacher, it may not be necessary for the authorities to consider the applications / representations.

8. Though this was the submission of learned A.G.P., in view of the policy of the State Government framed post decision of the Hon'ble Apex Court and more particularly, carving out clause, wherein State Government refers to the need of special action plan and in that special action plan itself, the State Government decided to follow the principles of natural justice, whereby issuance of notice to the encroachers and brief hearing is stated.

9. We see no impediment in disposing the writ petition with directions to respondent Nos. 2,3 and 4 to decide the applications received by them respectively on 21st September, 2018, as expeditiously as possible and not later than twelve (12) weeks from the date of this order. We further state that while deciding the applications, the authority would consider the merit of the applications, State Government policy reflected in Government Resolution dated 12th July, 2011 on the backdrop of the judgment of the Hon'ble the Apex Court in Jagpal Singh and others (supra).

10. With these directions, the petition is disposed of. 

                            (S.M.GAVHANE)                     (PRASANNA B. VARALE) 

                                    JUDGE                                                 JUDGE

Bombay High Court in Anita Dhammapal Bobade v. Hon'ble Minister for Rural Development & Ors. [Order dated 11.07.2018]

IN THE HIGH COURT OF JUDICATURE AT BOMBAY 

NAGPUR BENCH, NAGPUR 

WRIT PETITION NO 4121 OF 2018 

Anita Dhammapal Bodade, Aged about 35 years, Occupation: Household, Sarpanch Gram Panchayat, Wadiadampur, Residing at Wadiadampur, Taluqa Telhara, District Akola. 

....Petitioner

Versus

1. The Hon'ble Minister for Rural Development, through Secretary, Mantralaya, Mumbai, 400 032 
2. Devidas Supdaji Gavai, Aged Major, Occ. Agriculturist, Residing at Post : Wadiadampur, Taluqa Telhara, District Akola. 
3. Akola Zilla Parishad, through its Chief Executive Officer, 
4. Panchayat Samiti Telhara, through Block Development Officer, Wadiadampur, Taluqa Telhara, District Akola. 
5. Gram Panchayat, Wadiadampur, Through its Secretary, Wadiadampur, Taluqa Telhara, District Akola. 
6. The Divisional Commissioner, Amravati Division, Amravati. 

...Respondents

Shri K.S. Narwade, Advocate for the Petitioner. 

Ms. Ritu Kalia, A.G.P. for Respondent Nos. 1 & 6, 

Shri S.D. Chopde, Advocate for Respondent No.2. 

CORAM : S.B. SHUKRE, J.

DATE : 11th JULY, 2018. 

ORAL JUDGMENT:

Reply of respondent No.2 filed by the learned Counsel Shri S.D. Chopde is taken on record.

02. Issue notice for final disposal at the admission stage to respondent Nos.1, 2 & 6. Ms. Ritu Kalia, learned Assistant Government Pleader waives service of notice on behalf of respondent Nos.1 & 6 and Shri S.D. Chopde, learned Counsel waives for respondent No.2. There is no need to issue notice to respondent Nos.3, 4 & 5, they being formal parties and the issue involved in this petition being capable of resolution through the interpretation of the applicable provisions of law. 

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

04. The issue involved in this petition is as to whether or not the petitioner, an elected Sarpanch of Grampanchayat Wadiadampur, Tahsil Telhara, District Akola has incurred disqualification in terms of Section 39(1) of the Maharashtra Village Panchayats Act, 1958 (hereinafter referred to as "V.P. Act" for short) on account of misconduct on her part.

05. The issue has been answered against the petitioner by the Divisional Commissioner as well as the Hon'ble Minister by their orders respectively passed on 04/04/2018 and 26/06/2018. 

06. According to the learned Counsel for the petitioner, the Sarpanch has been authorized to levy taxes upon the structures made on the encroached lands in terms of the Government Resolution, dated 18/07/2016, which has been issued by the Government in consonance with the provision of Section 124 of the V.P. Act. He submits that under Rules 9 and 20 of the Maharashtra Village Panchayats Taxes and Fees Rules, 1960 (hereinafter after referred to as "Rules 1960" for short), the Sarpanch has power to not only prepare the assessment list of the buildings, structures, lands etc. for levying of the tax, but has also power to take action for levying of the tax on such buildings. Therefore, the resolution passed by the Sarpanch and the tax assessment list prepared in prescribed Form-8 by the Sarpanch for levying taxes upon the structures made by making encroachments cannot be said to be against the provisions of law. He also submits that the resolution passed by the Gram Sabha on 18/07/2016 also shows that this action has been taken bona fide by the petitioner with a view to increase the income of the Gram Panchayat and it was not for her personal benefit. So, he submits that this would also show the bona fides of the petitioner.

07. The learned A.G.P. as well as the learned Counsel for respondent No.2 support the impugned orders. According to them, no patent illegality has been committed in passing the impugned orders. They submit that the Government Resolution dated 18/07/2016, cannot be so read as to authorize a Gram Panchayat or Sarpanch to levy tax upon a structure or building existing on a land or belonging to the Government and which has been made by encroaching upon such a land. They submit that on the contrary, the Government Resolution, dated 04/12/2010, mandates that the Sarpanch and the concerned Gram Panchayat must take immediate action for removal of the encroachments, the moment encroachments are noticed. They also submit that in the case of Jagpal Singh and others vs. State of Punjab and others - (2011) 11 SCC 396, the Hon'ble Apex Court has expressed it's anguish and concern over the inaction of the concerned authorities regarding removal of the encroachments made upon the common village lands or the government lands. The Hon'ble Apex Court has, therefore, issued various directions including the direction for preparing the scheme for removal of the encroachments in a certain time frame by the concerned Governments and the local authorities.

08. Upon consideration of the relevant provisions of law, such as Section 124(2) of the V.P. Act and Rule 18 of the Rules 1960, I find that none of these provisions authorizes a Sarpanch to levy tax upon an encroacher, who has made an encroachment upon the common village land or the government land. 

09. Section 124(2) of the V.P. Act prescribes that the tax on buildings or lands referred to in clause (i) of sub-section (1), which are described as buildings and lands within the limits of the village, shall be leviable from the owners or occupiers of such buildings and lands.

10. Rule 18 of Rules 1960 prescribes as to from whom tax is primarily leviable. It lays down that the tax shall be leviable primarily from the actual occupier of the building or land upon which it is assessed. This provision, when considered in it's entirety, reveals that it envisages that the occupier of the building or land is a person in whom some or other right is vested in law and that is the reason why it clarifies the word occupier by taking into account various situations in which the occupier of the building or land may find himself. So, it says that the tax shall be leviable from the occupier of the building or land in the following situations:

i. When the occupier is the owner of such building or land and ;

ii. if the occupier of the building or land is not the owner himself, then, the tax is primarily leviable from -

(a) the lessor, if the property is let,

(b) the superior or lessor, if the property is sub-let

(c) the person in whom the right to let the same vests, if it is unlet and

(d) the person to whom the land or building has been transferred if the owner of the land or building has left the village or cannot otherwise be found.

So, it is clear that this rule only clarifies the position regarding leaviability of the tax from the owners or the occupiers of buildings and lands as prescribed under the substantive provision of Section 124(2) of the V.P. Act.

11. These two provisions of law would make it clear that the tax is leviable only on a person who is the owner of the building or land or a person who is occupier of the building or land in the capacity of lessor or sub-lessor or a person having right to let the land or building or a person to whom the land or building has been transferred. These provisions of law do not lay down anywhere that the tax is leviable on and recoverable from an encroacher, who has made an illegal structure on the encroached land. 

12. The learned Counsel for the petitioner has also referred to Rules 9 and 20 of the Rules 1960. However, reliance upon these provisions can be made only when the tax is found to be leviable on the lands or buildings as contemplated under Section 124 of the V.P. Act read with Rule 18 of the Rules, 1960 and in the facts of the present case, I do not think that there is any occasion for this Court to consider the applicability of the Rules 9 and 20 of the Rules, 1960, for, the facts and law discussed earlier have shown that tax is not leviable on and recoverable from encroachers. 

13. There is, of course, a Government Resolution, dated 18/07/2016, which authorizes a Gram Panchayat to levy tax upon certain buildings and constructions. It prescribes that tax can be levied by the Gram Panchayat upon those buildings and structures which have been constructed or made without any prior sanction or which are unauthorized. It also prescribes the procedure to be followed in such cases for levying of the tax. According to this procedure, necessary entries are required to be taken in the assessment list prepared as per the prescribed Form-8. Then, this Government Resolution goes on to add a clarification to the effect that by preparing assessment list and including such unauthorized buildings and structures in the assessment list, the unauthorized buildings and structures would not by themselves become authorized. In this clarificatory note, there is also a word employed which is "vfrdz f er", indicating that the structure is made by encroachment, and it is this word which is being read by the petitioner as the source of her power to levy tax on structures raised on government lands encroached upon, which I see to be a misreading of the term.

14. This word, "vfrdz f er", denoting a structure made by encroaching upon government land, could not be interpreted by any stretch of imagination as giving authority to a Gram Panchayat to levy tax upon it. The reason being that this word has appeared along with the other words referring specifically to the unauthorized buildings/structures and, therefore, the meaning conveyed by the other words would also have to be taken for understanding the connotation of Marathi word "vfrdz f er". This word has been employed in paragraph 3 of the Government Resolution, dated 18/07/2016, in following manner :-

"rls p ] ueq u k ua - 8 Eg.kts p dj vkdkj.kh uks a n oghe/;s bekjrhph uks a n ?ks r Y;keq G s vuf/kd` r @

vfrdz f er@voS | bekjrh@cka / kdke vf/kd` r gks r ukgh] ;kph uks a n ?;koh- "

15. All these words i.e. "vuf/kd` r @vfrdz f er@voS | bekjrh@ cka / kdke " clearly form one group of words having similar characteristics and have been used together to make an authoritative statement of purpose sought to be achieved. The purpose is that such type of unauthorised or illegal structures and constructions, by bringing under tax liability, do not turn into authorised structures. When we consider the purpose sought to be achieved, the word "vfrdz f er" would connote the same meaning as is conveyed by other similar words appearing in this group of words. There is another dimension involved. This Government Resolution enables a Gram Panchayat to levy tax upon unauthorised structures by prescribing a certain procedure. When such authority is given by the Government Resolution, the authority cannot be construed as giving more power than is available under the substantive provisions of law and rules made thereunder, which are Section 124(2) of the V.P. Act read with Rule 18 of the Rules, 1960. We have already seen that these provisions do not authorize a Gram Panchayat to levy tax on structures of encroachers. 

16. Even otherwise, the authority so given to the Gram Panchayat is only by way of an executive direction, which cannot prevail upon the statutory provisions of law discussed earlier, according to which, no authority has been given to the Gram Panchayat to levy any tax upon the buildings or the structures made upon the land, which is a land encroached upon. 

17. In view of the above, the only conclusion that can be drawn in the present case is that the petitioner acted in the present case without any authority of law and in an illegal manner. Now the question would be, whether such action would amount to misconduct on her part or not. According to the learned Counsel for the petitioner, it was a bona fide mistake and, therefore, it cannot be treated as a misconduct as contemplated under Section 39(1) of the V.P. Act. This has been disagreed to by the learned A.G.P. for the State and also the learned Counsel for respondent No.2.

18. I think the disagreement expressed by the learned A.G.P. and the learned Counsel for respondent No.2 is in consonance with the facts established on record. If one goes through the resolution passed by the Gram Panchayat and also the assessment list prescribed as per Form-8, one would find that the action taken by the petitioner could not be described as having been borne out of bone fide intention on her part. There is no mention whatsoever in these documents that the persons, who were shown as occupiers of certain lands were the encroachers. Of course, there is a mention about the fact that the tax was being levied with a view to increase the income of the Gram Panchayat. But, there is no justification or any reason stated in these documents as to why these persons, who are the encroachers, have been described as occupiers and not as encroachers. The consequences of such description made of persons on whom the tax has been levied are too significant to be ignored. 

19. There is a sea of difference between a person who is an encroacher and one who is an occupier of the government land or building in the context a dispute of present nature. The discussion made by me while interpreting the provisions of Section 124(2) of the V.P. Act and Rule 18 of Rules, 1960 would show it. Therefore, it was necessary for the petitioner to have clarified the status of the persons whose names are entered in Form-8 by mentioning in a specific manner that they were the encroachers, but that was not done by the petitioner, rather, the petitioner, admittedly shown these persons straightway as "occupiers", without further qualifying them as "encroachers". Once the person is shown as an occupier in Form-8, the description would confer a particular status upon that person thereby indicating that a person is not an encroacher, but is a person having some rights vested in him in law. This is the reason why the action taken by the petitioner cannot be said to be performed in good faith and this is where the argument of the learned Counsel for the petitioner about presence of bona fide in the dispute fails.

20. This was a case, which required the petitioner to uphold the law by following the directions of the Hon'ble Apex Court issued in the case of Jagpal Singh (supra), wherein the Hon'ble Apex Court directed that no illegal encroachments upon the village/Gram Panchayat lands be regularized and long duration of occupation or huge expenditure incurred in making constructions thereon or political connections is no justification for regularizing such illegal occupations. Not only that, the petitioner was also duty bound to obey the directions issued by the State of Maharashtra in Government Resolution No.2010/P.K.252/P.S.8, dated 04/12/2010. This resolution casts various obligations upon the Gram Panchayats including an obligation to remove the illegal encroachments forthwith. It also lays down in clause 10 that if the office bearers of Zilla Parishad/Panchayat Samiti/Gram Panchayat do any acts in the nature of rendering any assistance to make encroachments upon the government and public lands, it would be considered as an instigation to make the encroachments and so, it would be treated as a misconduct as contemplated in Section 39 of the V.P. Act. 

21. The facts of the present case would show that there being encroachments made by various persons on the government land, as admitted by the petitioner herself, the only action permissible in law was to proceed against the encroachers in terms of the directions issued by the Hon'ble Apex Court in the case of Jagpal Singh (supra) and the instructions of the State Government contained in its Government Resolution, dated 04/12/2010. But, that was not done by the petitioner. On the contrary, a move was taken by her to confer upon them some legal status by showing the encroachers in the Gram Panchayat record, on the excuse of taking entries in Form-8 with a view to assess tax and increase income of Gram Panchayat, as occupiers without any clarification that their presence on land was as encroachers. This was clearly against the provisions of law. The move so taken by the petitioner was nothing but an instigation and encouragement to the encroachers to continue to occupy the government land even with greater strength gained from assessment of tax made for occupation of the land, though the occupation was born of encroachment and not of some legal right, which is the basic requirement for assessing a property to tax under Section 124(2) of the V.P. Act read with Rule 18 of the Rules, 1960.

22. What follows now and necessarily so, the authorities below have rightly found that the petitioner is guilty of misconduct in the present case and that she did not act in a bona fide manner. There is no merit in the petition and it deserves to be dismissed. 

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

(S.B. SHUKRE, J.)