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 High Court in Baigya Jamlal Chavan vs. State of Maharashtra [08.12.2021]

In this order, a curious interpretation has been made of the Jagpal Singh case.

_________________________________________________________

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 

WRIT PETITION NO.3181 OF 2020 

BAIGYA JAMLAL CHAVAN 

VERSUS 

THE STATE OF MAHARASHTRA AND OTHERS 

Mr S. S. Thombre, Advocate for petitioner; 

Mr D. R. Kale, G.P. for respondent Nos.1 to 6; 

Mr S. C. Swami, Advocate for respondent No.7 

CORAM : RAVINDRA V. GHUGE AND S. G. MEHARE, JJ.

DATE : 8th December, 2021 

PER COURT:

1. We have briefly heard the learned Advocate for the petitioner, the learned Government Pleader on behalf of the respondents/State and the learned Advocate for respondent No.7.

2. The learned Government Pleader makes a serious grievance as regards a project being stalled, though the encroachments were removed and by recording the said statement on 03/03/2020, status-quo was directed to be maintained by this Court. Thereafter, the petitioner and his accomplice/encroachers have again occupied 'Gairan' land and have tried to erect their huts.

The learned Government Pleader submits that a case of Contempt of Court is surely made out.

3. The learned Advocate for the petitioner submits that there are several families along with him. Though they are encroachers, they have occupied the land for more than 40 years. They cannot be removed from the said land as the Government has a scheme for regularization of encroachments on Government lands.

4. The learned Government Pleader submits that such request for regularisation of encroachment has already been rejected by the District Collector vide order dated 06/12/2007.

5. We find that, even if the case of the petitioner is taken at it's best, he may be entitled for regularization of the encroachment and if such regularization of encroached lands is a part of a project, the petitioner may be entitled to compensation.

6. We also find that there is a scheme called as the 'Gharkul Yojana' and the Project Officer, Integrated Adivasi Development Project', Aurangabad has written to one such similar encroacher 3181.20wp to come forward with documents so as to consider the case for allotment of a home.

7. Be that as it may, considering the law laid down by the Hon'ble Apex Court in Jagpal Singh & ors. vs. State of Punjab & Ors., (2011) 11 Supreme Court Cases 396, a public project cannot be stalled. Several judgments have been delivered by the Hon'ble Apex Court after Jagpal Singh case, indicating that the Court should be extremely slow in stalling a public project by passing injunctory orders.

8. In the peculiar facts as recorded above, we call upon the learned Government Pleader to take instructions as to whether, purely for the time being and as an interim measure, the petitioner had similarly situated encroacher in the land at issue in this petition, are relocated to any portion of Government land in the vicinity, so that they would not be thrown on the streets and at the same time, a public project could go ahead. We also add that such re-location as an interim measure would be subject to the pending claim of the petitioner in this petition, for regularization of the encroachment and no rights or equities would be created in favour of the petitioner or similarly situated persons.

9. We are listing this petition on 17/12/2021 in the urgent category.

(S. G. MEHARE, J.)                                                                         (RAVINDRA V. GHUGE, J.) 

Bombay High Court in Valmik vs. State of Maharashtra [29.10.2021]

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

PUBLIC INTEREST LITIGATION NO. 35 OF 2021 

Valmik S/o Pandharinath Wakcharue & Anr. ..PETITIONER 

Versus 

The State of Maharashtra & Ors. ..RESPONDENTS 

WITH 

CIVIL APPLICATION NO.7732 OF 2021 

IN 

PUBLIC INTEREST LITIGATION NO. 35 OF 2021 

Rajendra Ratan Thete and Ors. ..APPLICANTS 

Versus 

Walmik Pandharinath Waghcaure ..RESPONDENTS 

... 

Mr. R. G. Ambetkar, Advocate for the Petitioners. 

Mr. P. K. Lakhotiya, AGP for Respondents-State. 

Mr. N. V. Gaware, Advocate for Applicants in CA. 

... 

WITH 

WRIT PETITION NO.6487 OF 2021 

Kailas Chandrabhan Waman and Ors. ..PETITIONERS 

Versus 

The State of Maharashtra and Ors. ..RESPONDENTS 

WITH 

WRIT PETITION NO.6488 OF 2021 

Ganesh Dilip Nehe and Ors. ..PETITIONERS 

Versus 

The State of Maharashtra and Ors. ..RESPONDENTS 

WITH

WRIT PETITION NO.6489 OF 2021 

Ranjandas Karbhari Wackchaure and Ors...PETITIONERS 

Versus 

The State of Maharashtra and Ors. ..RESPONDENTS 

WITH 

WRIT PETITION NO.6490 OF 2021 

Ashok Raghu Nehe and Ors. ..PETITIONERS 

Versus 

The State of Maharashtra and Ors. ..RESPONDENTS 

WITH 

WRIT PETITION NO.8188 OF 2021 

Shivaji Bakru Nehe and Ors. ..PETITIONERS 

Versus 

The State of Maharashtra and Ors. ..RESPONDENTS 

... 

Mr. N. V. Gaware, Advocate for the Petitioners. 

Mr. P. K. Lakhotiya, AGP for Respondent Nos.1 to 3, 5 and 6. 

... 

CORAM : S. V. GANGAPURWALA & 

                 R. N. LADDHA, JJ.

Closed for Orders on : 01.10.2021.

Order Pronounced on : 29.10.2021 

JUDGMENT (Per S. V. Gangapurwala, J.) :-

1. All these matters are based on similar set of facts, as such are decided by a common judgment.

2. Public Interest Litigation No.35 of 2021 is filed seeking directions against respondents-authorities to remove the encroachments over the public property that is gairan land and public way bearing Gut No.447 and 448 at village Dhondewadi, Post Jawalke, Tq. Kopargaon, Dist. Ahmednagar. The Writ Petitions are filed challenging the communication issued by the Sub Divisional Officer, Tahsildar and Block Development Officer directing the demolition/removal of 51 structures from Gut No.447 of village Dhondewadi.

3. The petitioners in Public Interest Litigation No.35 of 2021 had earlier filed Public Interest Litigation No. 5 of 2018 before this Court. The said Public Interest Litigation and another Writ Petition No.9199 of 2018 was disposed of by issuing directions to Collector, Dist. Ahmednagar to decide the representation of petitioners as expeditiously as possible and preferably within sixteen weeks from the date of order after extending opportunity of hearing to the parties. The Collector, Ahmednagar partly allowed the application filed by petitioners under order dated 14.06.2019 and directed the Sub Divisional Officer, Shirdi to take steps as per Government Resolution dated 16.02.2018 and submit detail report of enquiry. The Tahsildar, Kopargaon under communication dated 14.01.2020 communicated to the Sub Divisional Officer, Shirdi that as per the measurement and the records with Grampanchayat and Revenue Department, 90 encroachments in Gut No.447 and 448 at village Dhondewadi are found which are not eligible for regularization as per Government policy and Act. On or about 23.01.2020, the report is submitted by the Block Development Officer of Panchayat Samiti, Kopargaon about encroachments in Gut No.447 and 448 at village Dhondewadi. According to the petitioners in Public Interest Litigation, though, the report is submitted, no steps are undertaken for removal of the encroachments from the gairan land and the public way.

4. After filing of the Public Interest Litigation No.35 of 2021, respondent no.4 issued communication on 08.01.2021 to Tahsildar and Block Development Officer to undertake demolition/removal of 51 structures from Gut No.447 and 45 structures from Gut No.448 of village Dhondewadi. The petitioners in all these writ petitions challenged the said communication.

5. According to Mr. Ambetkar, learned counsel for the petitioners in Public Interest Litigation, the encroachments of these respondents is writ large. 51 persons have encroached in land Gut No.447. The said encroachments deserves to be removed immediately and in Gut No.448, 45 persons have encroached illegally on the gairan land. The encroachments on the gairan land cannot be regularized. Reliance is placed on the Government Resolution dated 12.07.2011 and also the judgment of the Apex Court in Civil Appeal No.1132 of 2011 decided on 28.01.2011 in a case of Jagpal Singh and Ors. Vs. State of Punjab and Ors. The learned counsel further submits that, all persons who have encroached upon have their own houses in the same village, still have committed encroachments and are seeking regularization, the same are not permissible. The chart given by the Government is correct. 

6. Mr. Gaware, learned counsel for petitioners in writ petitions submits that, the impugned orders directing that, the structures of petitioners be removed is illegal and is passed without adhering to the principles of natural justice. The petitioners were not noticed while issuing the said communication. The stand of petitioners was not invited. The petitioners would have been in a position to substantiate that their encroachments are not illegal. Now some of them are shown to be given benefits of Gharkul Yojna. The same is given to the another person in the family. The land owned by the independent family members cannot be considered, as the land of petitioners. All these aspects could have been pointed out by petitioners, had authorities given opportunity to the petitioners to put forth their case. As the principles of natural justice are violated, the impugned orders are bad in law. The learned counsel further submits that, these persons having their structures on the lands are poor persons. They will not have roof over their head, if the structures are removed. According to the learned counsel, proper procedure is required to be followed before passing orders for removal and other alternate accommodation be provided before eviction. The learned counsel relies on the judgment of the Apex Court in a case of Olga Tellis and Ors. Vs. Bombay Municipal Corporation and Others reported in 1986 AIR (SC) 180. The learned counsel submits that, the decision making process has to be fair and transparent. Only because some persons filed Public Interest Litigation that should not be a ground to evict petitioners. The petitioners' possessions are required to be regularized as per the policy of the Government. Some persons if they have been granted benefits under the Gharkul Yojna, even, the same cannot be a yardstick to label that all the persons are not entitled for benefits of regularization. The learned counsel relies on the judgment of the Apex Court in a case of Onkar Lal Bajaj and Others Vs. Union of India and Another reported in (2003) 2 SCC 673. The learned counsel submits that, the civil rights are adversely affected. The principle of audi alteram partem has to be followed as a Rule. The learned counsel relies on the judgment of the Apex Court in a case of Mohinder Singh Gill Vs. Chief Election Commissioner, New Delhi reported in 1978 AIR (SC) 851.

7. The learned A.G.P. submits that, after the order was passed by this Court in Public Interest Litigation No.5 of 2018 alongwith companion matters and Writ Petition No.9199/2018 dated 01.11.2018, the office of Collector has given the detailed hearing to all the concerned parties who were parties before this Court. The respondent no.2- Collector also called the reports from the subordinate Government Officers in respect of the subject matters that is encroachments over the Government Land in Gut No.447 and 448 of village Dhondewadi. All petitioners herein were represented and filed their say through Mr. Nehe and after detailed enquiry and after giving the full consideration to all the reply and say filed by the concerned departments, the Collector passed an order on 14.06.2019. It is found that, some of the encroachments are required to be regularized as per the guidelines enumerated in the Government Resolution dated 16.02.2018 and some of the orders were passed to remove the encroachments of the persons not eligible for regularization. The same was done after verifying the reports from the Tahsildar and the Block Development Officer. The physical survey was done by the Talathi, Gramsevak of Gut No.447 and 448 and the report was prepared and submitted to the Committee. The Committee after going through the entire record found that, in Gut No.447, 7 persons are entitled for regularization and remaining encroachers have alternate lands and still they have encroached on Government land, so also in Gut No.448 not a single person is entitled for regularization, more importantly 20 encroachments are found for the business purpose and residential purpose and those were done after 2011. They are not fit for regularization. No action was taken because the pandemic situation was arisen. After the ease in the pandemic situation, the further process is done. The learned A.G.P. further submits that, in Gut No.447, 60 encroachments are held not entitled encroachments are not entitled for regularization. It is incorrect to say that, no notices were issued to petitioners. The Grampanchayat, Dhondewadi already issued notices for removal of encroachments after the order was passed by the Collector. The learned A.G.P. relies on the chart submitted by him.

8. We have considered the submissions canvased by the learned counsel for parties.

9. The petitioners in writ petitions do not dispute that, they are the encroachers over the gairan lands bearing Gut No.447 and 448 at village Dhondewadi. The prima donna contention is that, principle of natural justice has not been followed.

10. Some of the persons had also earlier filed writ petitions. Notices were given to them. It would appear that, say was also filed by some of the petitioners. The say appears to have been filed in the representative capacity. The committee was constituted at the level of Sub Divisional Officer. The detailed enquiry was made about the encroachers and whether they are entitled for regularization. The order is passed for removal of persons who have encroached on the gairan land and not entitled for regularization. It also appears that, say was filed by one person in representative capacity. The fact remains that, these are the persons who have been given benefits under the various public schemes, such as, Gharkul Yojna. In some cases, the husband has been granted land and the benefit under the Gharkul Yojna and encroachment on the gairan land is made in the name of wife. In some cases, the benefit of the Gharkul Yojna is given in the name of son and the mother is encroacher on the gairan land. In some cases, the person himself is granted benefit under the Gharkul Yojna and has house constructed, still has encroached upon the gairan land. The detailed chart is filed by the State Government clarifying as to how these encroachments on the gairan land are not entitled for regularization. The said chart is in regional language. It is reproduced as under: 

---

11. We can understand the plight of persons who do not have roof over their head and order of removal of encroachments is passed against him, but here are the persons who have been given the benefit of public schemes of Government, such as Gharkul Yojna and have again caused encroachments on the gairan land. Such persons cannot be protected. The detailed survey seems to have been made by the Committee and thereafter, the conclusion has been drawn. The documents are also relied by the authorities. The chart given provides for the details as to how these persons are not entitled for regularization. These are the persons who either are given benefits under the scheme and still have encroached on the gairan land and/or some already have their houses and still structures are erected by committing encroachments. Some of the persons have started commercial activity. The details have been given in the affidavit-in-reply. Certainly for commercial purpose, the same would not be permissible. Even after the order is passed by the Collector holding that as per Government Resolution dated 16.02.2018, the persons are not entitled for regularization two years have lapsed. The measurement was already carried out by TILR. The boundaries are demarcated. Initially, the Committee of Sub Divisional Officer, Tahsildar and Block Development Officer has called a report from concerned Block Development Officer of Panchayat Samiti. The Committee with the help of Talathi and Gramsevak carried out physical survey of all the encroachments in Gut No.447 and 448. They identified the exact encroachments and the reasons of the encroachments and they submitted the report. There were very few encroachments in Gut No.447 who are entitled for regularization and their cases has been considered positively. Some of the encroachers have alternate lands, still have encroached on Government land. The 7/12 extracts supports the stand of the Government. In Gut No.448 out of 45 encroachments, 20 encroachments are found to be for business purpose and those were after 2011. If the encroachments are after 2011, they cannot be regularized even as per Government Resolution dated 16.02.2018. Earlier some of the encroachers had filed writ petitions. The writ petitions were disposed of directing the Collector to conduct enquiry and consider the stand and now some other persons are filing writ petitions.

12. The gairan land cannot be used for business purpose. The Government comes out with the laudable policy to regularize the encroachments of the needy persons and who may not have roof on their head or it is essential for the livelihood to qualify the encroachment land. In the present case, petitioners who have encroached upon the gairan land, possess and own the agriculture lands. They possess structures in their own agriculture lands. Some of them or their family members have been granted benefits of Gharukul Yojna i.e. the Government Scheme for construction of house and still encroached on the gairan land and some of them have carried out commercial activities on the encroachments made on the gairan land. Such encroachments cannot be protected. The Court would not come to the aid of such persons. In case of Olga Tellis and Ors. Vs. Bombay Municipal Corporation and Others (Supra) the persons affected by the demolition notice / eviction notice were the pavement dwellers and were to be deprived of their livelihood and life. In the present case, situation is otherwise. These persons have alternate accommodation. They owned the agriculture lands. They are given benefits of Gharkul Yojna that is the Government Scheme, inspite of that, are maintaining encroachments on the gairan lands. They cannot be granted protection by invoking our writ jurisdiction under Article 226 of the Constitution of India. The gairan lands are not meant for indiscriminate encroachments. The Apex Court in a case of Jagpal Singh and Ors. Vs. State of Punjab and Ors. (supra) had observed that, encroachments on the gairan lands are to be removed and should not be permitted. Pursuant to the judgment of the Apex Court in a case of Jagpal Singh and Ors. Vs. State of Punjab and Ors. the Government Resolution dated 12.07.2011 has been issued.

13. Considering the above, we cannot come to the aid of petitioners in these writ petitions. The Government Authorities may proceed further pursuant to their communications for removal of illegal encroachments and encroachments of those persons whose encroachments cannot be regularized.

14. The petitioners in writ petitions may remove their encroachments from Gut No.447 and 448 at village Dhondewadi within a period of one month. In case, these petitioners do not remove the encroachments within a period of one month, then respondent-authorities may proceed further for removal of encroachments.

15. With the aforesaid observations and directions, the Public Interest Litigation and Writ Petitions stand disposed of. No costs.

16. In view of disposal of Public Interest Litigation No. 35 of 2021, present Civil Application No.7732 of 2021 stands disposed of. 

                                (R. N. LADDHA)                             (S. V. GANGAPURWALA) 

                                        JUDGE                                                      JUDGE

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 Shriram vs. State of Maharashtra & Ors. [26.07.2021]

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

CIVIL WRIT PETITION NO.2557 OF 2021 

(Shriram s/o. Santu Ghewande (Died) through its L.R. Sarubai wd/o. Shriram Ghewande Vs. State of Maharashtra, through its Secretary, Department of Revenue & Forest, Mumbai and others)

Mr. S.M. Awachar, Advocate for petitioner 

Mr. N.R. Patil, AGP for the respondent Nos.1, 3 and 4/State 

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

DATE : 26th JULY, 2021.

Heard Mr. Awachar, learned counsel for the petitioner and Mr. Patil, learned AGP, who appears by waiving notice on behalf of the respondent Nos.1, 3 and

2. The petitioner is admittedly an encroacher upon government "E" Class land, which is Gairan land. It is the contention of Mr. Awachar, learned counsel for the petitioner that the petitioner is a land less person, who has encroached upon this land since the year 1991 and therefore, the petitioner is entitled for allotment of the land encroached by her through its regularization. He also submits that there is a Gram Panchayat Resolution dated 30.06.1998, which gives no objection for permanent allotment of government land to the petitioner. It is also the case of the petitioner that the petitioner is eligible for regularization of her encroachment, as her case falls in the exceptional categories carved out in the case of Jagpal Singh and others Vs. State of Panjab and others, (2011) 11 SCC

3. Mr. Patil, learned AGP for respondent Nos.1, 3 and 4 submits that under Section 22A of the Maharashtra Land Revenue Code, 1966 (for short "the Code of 1966"), no regularization for any private purpose is permissible, as it could amount to diversion of the Gairan land against the express provisions of law. He also submits that even by the criteria laid down in the case of Jagpal Singh (supra), the petitioner is not entitled for any kind of regularization.

4. So far as Gram Panchayat resolution is concerned, we must say that there was no business for the Gram Panchayat to have passed a resolution, giving its no objection for regularization of the encroachment upon the government land, especially in view of the provisions made under sub-Section (6) of Section 22A of the Code of 1966. These provisions indicate that powers of diversion, grant, lease of Gairan land under Section 22A of the Code of 1966 shall be vested in the State Government. Therefore, passing of any un- warrented resolution in respect of the land, of which Gram Panchayat is not the owner or the land which is not vested in the Gram Panchayat, only amounts to meddling with the affairs of the State Government, for which purpose, appropriate action, if thought it necessary, would have to be taken by the State Government.

5. Section 22A of the Code of 1966 provides for diversion of the Gairan land only in a limited manner. Such diversion or grant has been provided for under sub-sections (2) and (3) of Section 22A of the Code of 1966. Sub-section (1) of Section 22A of the Code of 1966 lays down that any land which is set apart as a Gairan land shall not be diverted or granted or leased for any other purpose, except in the circumstances, provided in sub-sections (2) and (3). For the sake of convenience, sub-sections (1), (2) and (3) of Section 22A are reproduced as under:

"[22A.Prohibition on diversion of use of Gairan land (1)The land set apart by the Collector for free pasturage of village cattle (hereinafter referred to as "the Gairan Land") shall not be diverted, granted or leased for any other use, except in the circumstances provided in sub- sections (2) or (3), as the case may be.

(2)The Gairan land may be diverted, granted or leased for a public purpose or public project of the Central Government or the State Government or any statutory authority or any public authority or undertaking under the Central Government or the State Government (hereinafter in this section referred to as "Public Authority"), if no other suitable piece of Government land is available for such public purpose or public project.

(3)The Gairan land may be diverted, granted or leased for a project of a project proponent, not being a Public Authority, when such Gairan land is unavoidably required for such project and such project proponent transfers to the State Government, compensatory land as provided in sub-sections (4) and (5)."

6. It would be clear from the above provisions of law that except for public purpose, the Gairan land cannot be diverted or granted or leased out for any other use. In the present case, the petitioner is seeking allotment of the land on lease to her for private purpose, which is not permissible under above referred provisions of law.

7. Even in the case of Jagpal Singh (Surpa), the Hon'ble Apex Court has allowed regularization only in exceptional cases, and these cases have been listed as the cases where lease had been granted under some Government Notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other utility on the land. In present case, admittedly, the petitioner is not there on the land by virtue of some Government Notification in her favour. Admittedly, the petitioner is seeking regularization of her encroachment for only private purpose. Therefore, as per the law laid down by the Hon'ble Supreme Court of India, the petitioner is not entitled for regularization of her encroachment by allotting the land on lease to her.

8. In the result, we find no merit in the petition, the petition stand summarily dismissed. No costs.

9. The learned counsel for the petitioner submits that crops of Soyabean and Toor are standing on the encroached land and therefore, some protection should be given to the petitioner to enable her to save the harvest of these crops.

10. There is nothing on record which establishes as a fact that these crops are standing on the land in question. Besides, notice has been received by the petitioner in May 2021 and therefore, if the contention of the petitioner is correct, petitioner ought to have taken necessary steps by now regarding removal of the crops, which apparently the petitioner has not done so.

11. The prayer made by the learned counsel for the petitioner is, therefore, rejected. However, the petitioner may approach the Tahsildar for grant of time of one week or two weeks at the most for restoring the land to its original position, if any.

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.