Bombay High Court
Sk.Salim Sk Farid Washim vs State Of Mah & Others on 23 June, 2016
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.350 OF 2005
Sk. Salim Sk. Farid,
aged about 38 years,
occupation : business,
r/o Risod, District Washim. ... Petitioner
- Versus -
1) State of Maharashtra, through
its Secretary, Revenue and
Forest Department, Mantralaya,
Mumbai.
2) Collector, Washim.
3) Sub-Divisional Officer, Washim.
4) Divisional Commissioner, Amravati
Division, Amravati.
5) Tahasildar, Risod, Taluq Risod,
District Washim.
6) Suvide Foundation Society, through
its President Shri Anantrao
Vithalrao Deshmukh (Ex-M.P.),
r/o Risod, District Washi.
7) The Chief Officer, Municipal
Council, Risod, District Washim.
8) Asstt. Director of Town Planning,
Akola.
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9) State of Maharashtra, through
its Secretary, Urban Development
Department, Mantralaya,
Mumbai.
10) Shri Anantrao Vitthalrao
Deshmukh, (Ex-M.P.), aged
50 years, r/o Loni Road,
Risod, District Washim. ... Respondents
-----------------
Shri A. Sambre, Advocate for petitioner.
Shri S.B. Bissa, Assistant Government Pleader for
respondent nos.1 to 5, 8 and 9.
Shri S. Manohar, Senior Advocate with Shri Gaikwad,
Advocate for respondent nos.6 and 10.
Shri A. Parchure, Advocate for respondent no.7.
----------------
CORAM : B.P. DHARMADHIKARI AND
KUM. INDIRA JAIN, JJ.
DATED : JUNE 23, 2016
ORAL JUDGMENT (PER B.P. DHARMADHIKARI, J.) :
By this petition filed under Article 226 of
Constitution of India, petitioner, an encroacher on
public land, seeks a direction to respondent Authorities
to consider his case for grant of lease of encroached
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portion. In addition, minor modification carried out in
terms of Section 37(2) of the Maharashtra Regional and
Town Planning Act, 1966 (hereinafter referred to as "the
Act") pertaining to Survey No.9 of Mouza Risod has
also been assailed. It is alleged that minor modification
is only to benefit respondent nos.6 and 10. Other lands
alloted to respondent no.6 ig are also pointed out with
contention that in relation to those lands, State
Government did not and could not recover the lease
money.
2) This Court had initially issued notice in the
matter on 4/2/2005 and directed parties to maintain
status quo. On 28/4/2005, this Court while admitting
the petition continued interim order and also restrained
State Government from considering proposal sent by
respondent no.2 Collector for allotment of land to
respondent no.6. State Government was also directed
to proceed to recover dues from respondent no.6. On
4/7/2005, this order was modified and State
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Government was permitted to consider the proposal
forwarded by Collector. The petitioner was given liberty
to file representation before State Government. The
time of four weeks was given for the said purpose.
3) We have heard Adv. Sambre for petitioner,
Shri Bissa, learned Assistant Government Pleader for
respondent nos.1 to 5, 8 and 9, Senior Adv. Manohar
with Adv. Gaikwad for respondent nos.6 and 10 and
Adv. Parchure for respondent no.7.
4) Adv. Sambre for petitioner submits that
petitioner is occupying a small portion admeasuring
40 feet x 60 feet of Survey no.9 of Mouza Risod where
he has his hotel and also residence. It is claimed that
petitioner is in possession since 20-25 years prior to
filing of writ petition. Petitioner was seeking allotment
of that land in his favour. Application dated 10/10/2000
moved by petitioner to respondent no.2 Collector for
the said purpose is relied upon by Adv. Sambre. He
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points out that Municipal Council had given no
objection for this purpose on 2/1/2001 and even
respondent no.10 in his capacity as Member of
Parliament, had favourably endorsed the request of
petitioner. Payment of Rs.2000/- on 30/3/2002 to State
Government is relied upon by him to urge that some
steps for regularisation of encroachment and for grant
of land to petitioner were taken. It is submitted that on
29/5/2003 respondent no.3 Sub-Divisional Officer had
called for a map of site encroached upon and it was
accordingly supplied.
5) It is contended by Adv. Sambre that said
survey number though belonging to Government was
meant for industrial purpose. Respondent no.6 Society
of which respondent no.10 is Chairman sought
allotment of part of land of Survey No.9 in its favour on
10/5/2003. Tahsildar also called upon it to deposit
amount of Rs.37,68,650/- on 29/3/2004. Adv. Sambre
submits that respondent nos.6 and 10 together
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proceeded to obtain a minor modification in terms of
Section 37(2) of the Act. They wanted change of user
from industrial to Cultural Centre and Stadium.
Accordingly on 6/5/2003, this change has been
permitted by State Government. Change is
unsustainable because petitioner was not given any
opportunity of hearing by respondent no.1.
6) Our attention is invited to policy decision
taken by State Government for the purpose of
regularising encroachments on 4/4/2002 with
submission that even commercial encroachment can
also be regularised thereunder. Adv. Sambre submits
that though Municipal Council has certified that
encroachment of petitioner has been removed on
3/11/2005, this certificate itself mentions that
encroachment abutting the road only came to be
removed. He states that even today, petitioner is in
possession of that land.
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7) Adv. Sambre has invited our attention to
electric bills paid by petitioner during 2002 and 2004 as
also to certain photographs produced along with
rejoinder on record to state that these documents show
possession of petitioner and respondents have not filed
any counter thereafter. He also relies upon reply filed
by State Government to urge that there is no allotment
of land in favour of respondent no.6.
8) Amendment to writ petition vide paragraph
11-A is pressed into service to urge that lands
admeasuring 21.85 hectares or 54 acres at Mouza
Karda have been allotted to respondent no.6 in 1994
and till passing of orders by this Court, respondent no.6
has not paid any lease money.
9) Our attention is invited to communication
dated 20/3/2004 sent by office of Collector to Sub-
Divisional Officer on the subject of recovery of said
amount. Adv. Sambre points out that till date of that
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letter, amount of Rs.18,35,360/- was outstanding. It is
contended that respondent no.10 is an influential
person, who is used to grab the lands. Change of user
through minor modification at his instance is illegal and
Survey No.9 of Mouza Risod cannot be allowed to be
allotted to that person.
10)
Senior Adv. Manohar has invited our attention
to pleadings in writ petition to urge that there are no
proper allegations of malafides or abuse of power
against respondent no.10. Only because he happens to
be Ex-Member of Parliament, inference of abuse of
power cannot be drawn. He states that minor
modification is legislative process, which has been
accomplished after fulfilling necessary formalities.
Though petitioner claims that he had opposed proposal
for minor modification by raising objection, respondents
in the reply-affidavit have specifically denied it. Senior
Adv. Manohar submits that they have claimed this
stand to be false. The petitioner has not dealt with this
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aspect by filing any affidavit thereafter. Inviting our
attention to provisions of Section 37(2) of the Act and
judgment in Pune Municipal Corporation and
another vs. Promoters and Builders Association
and another (2004 (3) Mh.L.J. 360), he submits that
opportunity of hearing is not envisaged at all in that
provision.
11) The modification under Section 37 of the Act
was proposed on 29/11/2001 and it has been approved
by State Government on 6/5/2003. No writ petition was
filed within reasonable time thereafter. Encroachment
of petitioner was removed by Municipal Council in
January 2005 and present petition reveals that it was
prepared on 21/1/2005. In writ petition, huge delay in
approaching Court has not been explained.
12) While dealing with land allotted to respondent
no.6 at Karda, Senior Adv. Manohar states that land
has been allotted for a project of Indian Council for
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Agricultural Research and a Krushi Vidnyan Kendra is
located on it. Activities are being carried out in public
interest. The petitioner has not pointed out that said
land has been allotted illegally or for some other
purpose, which is not permitted in any law. Hence,
allotment of that land by itself cannot be a relevant
circumstance in the present matter.
ig He further
contends that as lease money was not determined,
there was no question of paying it. He adds upon
instructions that in 2007, orders in that respect have
been passed. Though respondent no.6 had questioned
those orders before appropriate Authority, payment in
terms of the said orders has been made. He states that
he has instructions to point out to this Court that
respondent no.6 is not in arrears thereafter and even
today.
13) Lastly, Senior Adv. Manohar points out that
admittedly petitioner is an encroacher and he cannot
claim allotment of land as of right. At the most, he can
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request for consideration of his application. Similarly,
application moved by respondent no.6 for grant of land
out of Survey No.9 is still under consideration. Thus, till
these applications are decided, cause of action cannot
accrue. The petition as filed is, therefore, premature.
He fairly states that if competent Authority is directed
to take appropriate decision on pending applications,
respondent nos.6 and 10 have no objection.
14) Shri Bissa, learned Assistant Government
Pleader is relying upon reply affidavit. He submits that
encroachment made by petitioner was removed, but
thereafter he and others have again made
encroachment. He has further invited our attention to
Government Resolution dated 4/4/2002 to urge that in
terms of paragraph 7 thereof, no regularisation is
possible in this matter. He further states that in view of
reservation in development plan also, encroachment
cannot be regularised.
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15) In his brief reply arguments, Adv. Sambre for
petitioner submits that after order of this Court dated
4/7/2005, State Government has not placed on record
any compliance therewith though twice extension was
obtained. According to him, therefore, oral statements
made by respondent no.6 before this Court cannot be
relied upon. He further states that entire area of
Survey No.9 is about 13.75 hectares while minor
modification is restricted to 2.25 hectares only. He
contends that in this situation, alleged minor
modification cannot come in the way of respondent
no.2 Collector while considering application of
petitioner in terms of Section 51 of Maharashtra Land
Revenue Code.
16) Perusal of judgment of Hon'ble Apex Court in
the case of Pune Municipal Corporation vs.
Promoters and Builders Association (supra) clearly
show that power available to State Government under
Section 37 of the Act is legislative in character. The
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Hon'ble Apex Court, therefore, has held that there is no
question of providing any opportunity of hearing while
undertaking that exercise. We, in this situation, find no
substance in the challenge of petitioner that
opportunity of hearing ought to have been provided to
him before approving alteration. Moreover, respondent
State has on affidavit pointed out that objection was
not raised by anybody to proposed minor modification
and this assertion is also contained in the affidavit filed
by respondent nos.6 and 10. They have stated that
contention of petitioner that he had raised such
objection is false. The petitioner thereafter has not
rebutted it by placing on record any material. Hence,
this challenge to minor modification as approved on
6/5/2003 has to fail.
17) Though respondent nos.6 and 10 have claimed
that encroachment of petitioner has been removed,
State Government itself has in its reply accepted that
after that removal, petitioner has again made
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encroachment.
18) We need not go into any disputed question
whether it is same encroachment or then it is a fresh
encroachment. The possession of petitioner appears to
be admitted by respondents and by interim orders
passed by this Court it has been protected. Provisions
of Section 51 of Maharashtra Land Revenue Code
enable him to seek regularisation thereof by moving
application to respondent no.2 Collector. He has filed
writ petition before this Court with the said prayer on
24/1/2005. We, therefore, cannot say that petition as
filed is belated.
19) Reliance of petitioner on Government
Resolution dated 4/4/2002 appears to be misconceived.
That Government Resolution has been issued by State
Government only to regularise hutments, which have
come up as encroachment on Government land. From
its preamble, it appears that such encroachments prior
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to 1/1/1985 were regularised and question of
regularising similar encroachments, which had come up
in next 10 years, i.e. upto 1/1/1995 was under
consideration of State Government. While considering
that issue, Government Resolution has been issued on
4/4/2002. It is, therefore, obvious that unless and until
petitioner shows that his encroachment is hutment, which
is covered by this policy of State Government, benefit
of such Government Resolution cannot be claimed by
him. However, Section 51 of Maharashtra Land
Revenue Code obliges respondent no.2 to consider
application of petitioner for regularisation of his
encroachment. What should be relevant consideration
for the said purpose cannot be looked into by us at this
stage. Though survey no.9 is admeasuring 13.75
hectares and earlier entire area was included in
industrial zone, after 6/5/2003 area of 2.25 hectares out
of it is reserved for construction of Cultural Centre and
Stadium. The exact location of this modified portion
in entire survey no.9 is not on record. It is
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not very clear whether encroachment of petitioner falls
in that area. However, these aspects can be looked
into by respondent no.2 Collector while considering
request of petitioner for regularisation of his
encroachment. Needless to mention that respondent
no.6 has also claimed land for construction of Cultural
Centre and Stadium. At that juncture, this issue can be
looked into.
20) The order of this Court passed on 4/7/2005
obliges respondent State Government to consider
proposal forwarded by Collector to it. The petitioner
was given opportunity to make representation to State
Government against that proposal. This Court at that
time directed action to be completed within 16 weeks.
Thereafter though State Government has obtained
extensions, it is not brought on record by State
Government that these directions have been complied
with. According to petitioner, directions have not been
complied with till date. Respondent nos.6 and 10 have
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instructed their Counsel to make an oral statement on
the lines of which we have taken note above.
21) We, therefore, find that now compliance with
this order needs to be made by respondent no.2 within
a period of eight weeks from communication of this
order to respondent no.2. Order of this Court dated
4/7/2005 shall hereafter be construed as direction to
respondent no.2. Accordingly, we direct respondent
no.2 to comply with orders of this Court and to consider
applications moved by petitioner as also respondent
no.6 afresh in time stipulated above.
The parties shall maintain status quo in
relation to possession of petitioner in the meanwhile.
22) The writ petition is thus partly allowed and
disposed of. No costs.
JUDGE JUDGE
khj
