Bombay High Court
Sadashivrao Patil Shikshan ... vs State Of Maharashtra Thr. Secy. ... on 7 July, 2017
Bench: Ravi K. Deshpande
1 wp3049.06.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 3049 of 2006
Shri Sadashivrao Patil Shikshan Sanstha,
Behind Railway Station, Kamptee,
District Nagpur, through its Secretary
Shri Suresh S/o. Gulabrao Dafare,
Aged about 44 years, Occ. Agriculturist,
R/o. Yerkheda, Tah. Kamptee,
Distt. Nagpur ...... PETITIONER
...VERSUS...
1. State of Maharashtra,
through the Secretary,
Department of Revenue,
Mantralaya, Mumbai-32
2. Deputy Director of Town Planning
Department, Nagpur, Distt. Nagpur.
3. The Collector, Nagpur District,
Nagpur.
4. Naib Tahsildar, Nazul Department,
Kamptee, District Nagpur.
5. Maharashtra State Nagpur Housing &
Area Development Board, through its
Chief Officer, Civil Lines, Nagpur ...... RESPONDENTS
-------------------------------------------------------------------------------------------
Shri R.L.Khapre, Advocate with Shri A.D.Dangore, Advocate for
Petitioner.
Shri N.S.Rao, AGP for Respondent nos. 1 to 4
Shri Sunil Manohar, Senior Advocate assisted by Shri Nikhil Gaikwad,
Advocate for respondent No.5 MHADA .
::: Uploaded on - 14/07/2017 ::: Downloaded on - 14/07/2017 23:47:27 :::
2 wp3049.06.odt
CORAM: R. K. DESHPANDE, AND
Mrs. SWAPNA JOSHI, JJ.
th
DATE : 7
JULY, 2017 .
ORAL JUDGMENT (P.C.)
1] The challenge in this petition is to the order
dated 19.09.2002 passed by the Collector, Nagpur, allotting
5.12 hectare of land out of Survey Nos. 23-A, 23-B and 36/10
situated at Kamptee (hereinafter referred to as the "land in
question") for the purposes of construction of houses for the
Bidi workers belonging to economically backward classes.
The order has been issued pursuant to the allotment made
by the State Government as per its memorandum dated
14.07.2000.
2] The petitioner is the Society and running
Technical Institution and was allotted 40,000 sq.mtrs of land,
out of Survey No. 36/10, situated at Kamptee. This allotment
of the petitioner was under Rules 5 and 6 of the Maharashtra
Land Revenue (Disposal of Government Lands) Rules, 1971
(in short "the said Rules), for educational purposes. The land
admeasuring 37,500 sq. mtrs., was allotted for educational
purpose, whereas 2,500 sq.mtrs of land was allotted for the
3 wp3049.06.odt
purpose of play ground. The petitioner society claims to have
applied for allotment of land in question which is adjacent to
its land. The reliance is placed upon the document at page
41, dated 23.12.1998 by which the Naib Tahsildar called for
certain information from the petitioner in respect of land
Survey No. 36/10 and Khasra Nos. 23-A and 23-B, situated
at Kamptee. The reliance is also placed upon the document
dated 25.02.2004 to claim that the land in respect of which
the proposal for allotment was submitted is in possession of
the petitioner by way of encroachment since the year 1992.
3] It is urged by Shri Khapre, the learned counsel
for the petitioner that without considering such proposal of
the petitioner, the allotment of the land is made in favour of
the respondent No. 5 - Maharashtra Housing and Area
Development Authority i.e. MHADA on 14.07.2000 by the
State Government. The reliance is placed upon the decision
of the Division Bench of this Court in the case of Amin
Mohammad Saha Mohammad Siddiqui vrs. State of
Maharashtra and ors, reported at 2004 (3) Bombay C.R.
339. It is also claimed that respondent No.5 - MHADA has
failed to comply with the terms of grant by carrying out and
4 wp3049.06.odt
completing the construction within the stipulated period.
Hence, the allotment stands cancelled. It is also urged that
looking to the need of the petitioner and the location of the
land in question, the State Government should have granted
allotment to the petitioner either under Rules 5 and 6 or
under Rule 43 of the said Rules.
4] Shri Sunil Manohar, the learned Senior
Advocate, assisted by Shri Gaikwad, the learned counsel
appearing for respondent No. 5 - MHADA, invites our
attention to the reply, in which it is stated that the application
was made by respondent No. 5 - MHADA for allotment of
land in question on 03.03.1999 and in view of the fact that
the said land is required by the respondent No.5 for
construction of houses for bidi workers under the Special
Programme of the Central Government i.e. the National
Housing Programme which is funded by the Central
Government, the Collector, so also the respondent No.1 were
well within their right to allot the said land to respondent No. 5
in preference to all other claims of private institutions. He
submits that the requirement of Rules 5 and 6 of the said
Rules, 1971, is to submit an application to the Collector for
5 wp3049.06.odt
allotment of free of occupancy price and free of revenue land,
whether in perpetuity or for a term, for the purpose of
education which is specified in column 1 of the table below
therein.
5] The learned AGP invites our attention to the
reply filed by the respondent No. 3 - Collector, wherein it is
stated that the Town Planning Department is not the authority
to sanction the land to the petitioner. It is further stated that
Naib Tahsildar has imposed the fine of Rs.5,000/- for illegal
use of land by the petitioner as past occupancy charges.
The reply further states that the possession of area of 34,600
sq.mtrs (land in question) is already handed over the the
Deputy Engineer, MHADA on 23.10.2000 pursuant to the
memorandum issued by the State Government on
14.07.2000 and the order of the Collector passed on
19.09.2000.
6] Perusal of Rule 6 of the Maharashtra Land
Revenue (Disposal of Government Lands) Rules, 1971,
reveals that it relates to the power of the Collector to make
revenue free grants and for that purpose application is
6 wp3049.06.odt
required to be made to the Collector. Shri Khapre, the
learned counsel appearing for the petitioner could not point
out any such application addressed to the Collector for
allotment of land for educational purpose as required by
Rules 5 and 6 of the said Rules. In the absence of rival claim
for the land in question, in terms of Rules 5 and 6 of the said
Rules, the applicability of the decision cited is excluded.
7] Rule 43 of the said Rules deal with the grant of
land encroached upon. According to Shri Khapre, the learned
counsel for the petitioner, the Government has imposed fine
of Rs.5,000/- for unauthorized use and occupation of the land
in question and therefore, as an encroacher, the petitioner
should have been preferred for allotment. However, it is not
the case that any application was submitted as required by
Rule 43 of the said Rules for allotment of land as an
encroacher. The imposition of fine of Rs.5,000/- appears to
be after the date of allotment of land to the respondent No. 5
on 19.09.2000. Apart from this, there being dispute on the
question as to whether the petitioner has encroached upon or
was in possession of the land in question, it is not possible
for us to adjudicate such a dispute in exercise of writ
7 wp3049.06.odt
jurisdiction.
appears to be in exercise of powers conferred under Rule 27
of the Disposal of Government Land Rules. The said Rule
states that the building plots may be granted by the State
Government for various housing schemes undertaken by any
Housing Board, Local Authority or Cooperative Housing
Society constituted under any law for the time being in force,
in occupancy rights under section 40 on inalienable and
impartible tenure on the payment of such concessional
occupancy price as the State Government may, from time to
time fix, regard being had to the nature of the scheme, and in
the case of Cooperative Housing Society, to the income of
the members thereof, such income being ascertained after
making such inquiries as the State Government may think fit
to make in this behalf.
9] There is no reason to doubt that before allotment
of land to the respondent No.5 on 14.07.2000, such an
enquiry must have been made and there is also no challenge
to the allotment on any such ground. The allotment to the
8 wp3049.06.odt
respondent No. 5 is for construction of houses for bidi
workers under the Special Programme of the Central
Government i.e. National Housing Programme which is
funded by the Central Government. The respondent No. 5 is
the Housing board and is also a local authority as defined in
Section 4 of the Maharashtra Housing and Area
Development Act. The claim of the respondent No.5 -
MHADA is, therefore, clearly covered by the provisions of
Rule 27 of the said Rules.
10] The contention of Shri Khapre, the learned
counsel for the petitioner is that, though, while the allotment
was claimed for construction of houses for bidi workers,
there is not even a single bid worker who has been
accommodated in the scheme. It is also urged that there is a
violation of the terms and conditions of the grant to the
respondent No.5 by the State Government. It is not possible
to us to entertain such a plea for the reason that it is for the
State Government to look into such matters and the
petitioner cannot claim allotment in its favour on the basis of
such plea.
9 wp3049.06.odt
11] In our view, the petitioner has no right to claim
allotment of land in terms of Rule 6 of the said Rules. It is
not the application under Rule 43 of the said Rules as an
encroacher. We may not enter into the question of propriety
and justification either in refusing to allot the land to the
petitioner or allotment of land in favour of respondent No.5. It
is the matter well within the province of the Collector and the
State Government in accordance with the provisions of the
Land Disposal Rules.
In view of above, we do not find any substance
in this petition. The same is dismissed. No order as to costs.
JUDGE JUDGE
Rvjalit
