Bombay High Court

Smt. Ratnabai Anna Shetty And Ors vs The State Of Maharashtra, Through ... on 24 March, 2017

Bench: A.S. Oka

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7109 OF 2012

Smt. Ratnabai Anna Shetty and Others. .. Petitioners
Vs
The State of Maharashtra and Others. .. Respondents
-
Shri Tejpal S. Ingale for the Petitioners.
Shri Manish Pabale, AGP for the Respondents.
-

CORAM : A.S. OKA &
SMT.ANUJA PRABHUDESSAI, JJ

DATED : 9TH MARCH 2017

ORAL JUDGMENT: (PER A.S.OKA, J)

1. This Petition was called out for final hearing. The

substantive challenge in this Petition is to the orders dated 24 th

November 2011 and 17th December 2011 passed by the State

Government. It was found that the Petitioners had made encroachment

on the Government Gairan land bearing Gat No.2798 at Village Shirol,

Taluka - Shirol, District - Kolhapur. The extent of encroachment is 9

Ares (approximately 9348 sq. ft.). It appears from the impugned

communications dated 24th November 2011 and 17th December 2011

issued by the State Government and the District Collector, Kolhapur,

respectively that Shri Raju Shetty, a Member of Parliament made an

Application for regularization on behalf of the Petitioners. Shri Raju

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Shetty is the sixth Petitioner in this Petition. By the impugned

communication dated 24th November 2011, the State Government

informed the District Collector, Kolhapur, that in view of the

Government Resolution dated 12th July 2011, the prayer made by Shri

Raju Shetty, the Member of Parliament for regularization cannot be

accepted. By the second impugned communication dated 17 th December

2011, the District Collector, Kolhapur communicated the said decision

to Shri Raju Shetty. As the prayer for regularization was rejected on the

basis of the Government Resolution dated 12 th July 2011, there is also a

challenge to the said Government Resolution in this Petition under

Article 226 of the Constitution of India.

2. The Paragraph 1 of the order dated 23 rd February 2017

reads thus:

"1. This Petition on Final Hearing Board was heard
for some time. The learned counsel appearing for the
Petitioners on instructions states that the Petitioners
are willing to offer a plot of land having an area
equivalent to the encroached portion. He stated that
the Petitioners will offer the land and apply for
regularization of the encroachment subject matter of
this Petition. He states that the Petitioners are willing
to file an affidavit stating that if proposal of the
Petitioners for regularization by accepting the plot of
land offered by them is rejected by the District
Collector, they will vacate the encroached portion and
hand over the vacant possession thereof to the State
Government within a reasonable time."

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3. In terms of the statement of the learned counsel appearing

for the Petitioners, today, an affidavit of Shri Subhash Anna Shetty, the

fifth Petitioner is tendered on record which is sworn on 9 th March 2017.

The same is taken on record and marked "A1" for identification. The

Paragraphs 2 and 3 of the said affidavit read thus:

"2. I say that, the Petitioners are ready to surrender
their own land from contiguous Gat No.2797
admeasuring about 8,608 sq. ft near about 8 R.
to the Respondent State Government in lieu of
the corresponding to the disputed portion of their
residential house and cattle shed in their
occupation comes in adjoining Government
Gayran Land bearing Gat No.2798 (old Gat
No.1213) admeasuring about 8,608 sq. ft near
about 8 R., so that, the entire area of
Government Gayran Land Gat No.2798 will not
be reduced to that extent. The Petitioners will
submit proposal to the Respondent No.1 & 2
accordingly on or before 30th March, 2017 for
consideration.

3. I say that, in case the abovesaid proposal
submitted by the Petitioners to the Respondent
No.1 & 2 is rejected then the Petitioners
undertake to remove the said disputed structures
from Government Gayran Land Gat No.2798
within a period of 6 months from the date of
communication of said Order of rejection at their
own cost."

4. The learned counsel appearing for the Petitioners states

that the affidavit containing the aforesaid undertakings has been filed

by the fifth Petitioner for himself and on behalf of the other Petitioners.

We accept the statement.

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5. However, we have noticed that there is no power of

attorney granted by other Petitioners appointing the fifth Petitioner as

their Constituted Attorney expressly authorizing him to give

understandings. Therefore, the other Petitioners will have also to file a

similar undertaking.

6. The undertaking of the Petitioners is to submit a proposal

to the State Government and to the Collector on or before 30 th March

2017 offering to transfer and hand over the possession of the land

admeasuring 8608 sq. ft (approximately 8 Ares) out of the land bearing

Gat No.2798 of the village Shirol, Taluka - Shirol, District - Kolhapur in

favour of the State Government in lieu of the encroached portion of the

land which is subject matter of the impugned communications. The

Petitioners have given an undertaking that in the event, the said

proposal is rejected, they will undertake to remove the structures on the

encroached portion and hand over the vacant possession thereof to the

State Government within a period of six months from the date of receipt

of the communication of rejection.

7. Accordingly, we pass the following order:

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ORDER:

(a) The undertakings of the fifth Petitioner in Paragraphs

2 and 3 of the affidavit dated 9th March 2017

(marked "X1" for identification) are accepted as his

own undertakings and the undertakings of the other

Petitioners;

(b) We direct that the other Petitioners shall file similar

undertakings on oath within a period of three weeks

from today. We direct that the undertakings shall

clearly state that in the event the first and the second

Respondents reject the proposal which may be

submitted by the Petitioners, within a period of six

months from the date on which a communication of

rejection is served to the Petitioners or one of them,

the structures of the Petitioners on the encroached

portion subject matter of the impugned

communications shall be removed and vacant

possession of the encroached area shall be handed

over by the Petitioners to the second Respondent. A

supplementary undertaking to that effect shall be

also filed by the fifth Petitioner within a period of

three weeks from today;

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                  (c)      If   undertakings   are   not   filed   by   all   other   five

Petitioners within a period of three weeks from today,

the Petition shall stand dismissed for non-prosecution

without further reference to the Court;

(d) We accept the undertaking of the Petitioners that a

proposal in terms of Paragraph 2 of the aforesaid

affidavit of the fifth Petitioner will be submitted to

the first and second Respondents on or before 30 th

March 2017;

(e) We make it clear that if a proposal in terms of

Paragraph 2 of the said affidavit of the fifth Petitioner

is not submitted on or before 30th March 2017 with

the first and the second Respondents, the Petition

shall stand dismissed for non-prosecution without

further reference to the Court;

(f) If the Application for regularization in terms of the

undertakings given in Paragraph 2 of the aforesaid

affidavit of the fifth Respondent is submitted on or

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before 30th March 2017, the said Application shall be

decided by the first Respondent as expeditiously as

possible and in any event within a period of two

months from the date on which the Application is

made;

(g) The order passed on the said Application be

communicated to the Petitioners or to one of them

within a period of one week from the date on which

the order on the said Application is passed;

(h) In the event, the undertakings as aforesaid are filed

by the Petitioners within a period of three weeks

from today and in the event, the proposal as stated in

Paragraph 2 of the said affidavit of the fifth Petitioner

is filed on or before 30th March 2017, the action of

removal of the encroachment on the land subject

matter of the impugned communications shall not be

taken for a period of six months from the date on

which the communication of the order passed on the

said Application is served to the Petitioners or any

one of them;

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                  (i)      We   make   it   clear   that   failure   of   the   Petitioners   to

remove the encroachment and hand over the vacant

possession thereof in the event of rejection of the

Application made by the Petitioners to the second

Respondent within the stipulated period of six

months, the first and the second Respondents shall

take immediate steps for removal of encroachment

and for taking over vacant possession of the

encroached portion without issuing any notice to the

Petitioners;

(j) For reporting compliance by the State Government

with the directions issued under this order, place the

Petition under the caption of "Directions" on 13 th