Bombay High Court
Dhrupatabai Gangadhar Chhapewar vs The State Of Maharashtra Through Its ... on 4 September, 2024
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
2024:BHC-AUG:20650-DB
(1) wp 8727.24
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8727 OF 2024
Dhrupatabai W/o Gangadhar Chhapewar,
Age: 55 years, Occu. Agri.,
R/o Main Road, Dr. Ambedkar Nagar,
Ardhapur,Tq. and Dist. Nanded. ... PETITIONER
V/s.
1. The State of Maharashtra,
Through its Secretary,
Revenue and Forest Department,
6th Floor, Mantralaya, Mumbai - 400 32.
2. The District Collector, Nanded
Tq. and Dist. Nanded.
3. Sub-Divisional Officer, Nanded,
Tq. and Dist. Nanded.
4. Tahsildar, Ardhapur
Tq. Ardhapure, Dist. Nanded. ... RESPONDENTS
.....
Mr. S.S. Gangakhedkhar, Advocate for the Petitioner
Mr. M. M. Nerlikar, Addl. GP for the Respondent-State
.....
CORAM : RAVINDRA V. GHUGE &
Y.G. KHOBRAGADE, JJ.
RESERVED ON : 21st August, 2024
PRONOUNCED ON : 04th September, 2024
JUDGMENT (Per: Y.G. Khobragade, J.):
-
1. Rule. Rule made returnable forthwith. Mr. Nerlikar the learned
Addl. GP waives service of notice on behalf of Respondent Nos.1 and 2. With
(2) wp 8727.24
the consent of both the sides, the matter is heard finally at the stage of
admission.
2. We have considered the strenuous submissions canvassed on
behalf of the Petitioner as well as on behalf of the Respondents. By the present
Petition under Article 226 of the Constitution of India, the Petitioner has
prayed for issuance of Writ of Mandamus to consider the report submitted by
Respondent No.3 on 08.07.2011 and his representation dated 02.06.2023 for
regularization of his encroachment on Gairan Land bearing Gut No. 679 ad-
measuring 2 Hectare in pursuance of Government Resolution dated
28.11.1991.
3. The learned counsel for the Petitioner submits that late Shri Bhima
Chappewar i.e. the father in law of the present Petitioner was in possession of
land bearing Gut No. 679 ad-measuring 2 Hectare since 1984. After demise of
her father in law, her husband was in possession and was cultivating the said
land and after demise of her husband, she is in possession and cultivating the
said land. During life time, her father in law had submitted an application for
regularization of said Gairan land as per G.R. dated 28.11.1991. Thereafter,
the Revenue Department made an enquiry and prepared spot Panchnama on
25.01.2011 stating therein that the deceased Bhima, Gangaram and his family
are having possession over the said land. Accordingly, on 29.09.2010, the
(3) wp 8727.24
Respondent No.3 sent a proposal for regularization of said Gairan land to the
Respondent No.2 Collector, Nanded but possession of said land could not be
regularized in favour of the Petitioner and her family. Therefore, on
08.07.2011 and 02.06.2023, the Petitioner submitted representations but said
representations were not decided and the land was not regularized.
4. Per contra, the learned AGP canvassed that the Petitioner is
praying for regularization of encroachment on Gairan Land bearing Gut No.
679 ad-measuring 2 Hectare as per G.R. dated 28.11.1991 on the ground that
her father in law late Shri Bhima Chappewar was in possession of land since
1984 and after demise of her father in law, her husband was in possession and
after demise of her husband, she is in possession of the said land and she is
cultivating the said land, however, on 29.09.2010, the Sub-Divisional Officer
Nanded submitted its report stating that as per G.R. dated 28.11.1991, the
encroachments on Gut No. 679 were regularized but as per order dated
16.03.1989, the said land ad-measuring 2.02 H.R. was given to the
Maharashtra Khadi Gramodyog Mandal for development of Rayon Industry but
on 19.07.2007 the Maharashtra Khadi Gramodyog Mandal returned said land
because of non utilization. Though, possession of Petitioner is shown as per
revenue record from 1982-83 to 1999-2000 as well as per 7/12 extract of
1983-84, encroachment of Petitioner's father-in-law was shown to the extent of
60 R and as per Pere-Patrak (Cultivation Record) of 1983-84 to the extent of
(4) wp 8727.24
1.00 H.R. but as per G.R. dated 28.11.1991, no land hold lease was shown in
the name of Petitioner's father in law. So also, Shri Gangadhar Bhima
Chappewar, the husband of the Petitioner had filed Regular Civil Suit bearing
R.C.S. No. 2 of 2005 for decree of declaration and permanent injunction which
was dismissed. So also, the Petitioner with her children had filed a civil suit
bearing R.C.S. No. 944 of 2012 for declaration that they are entitled for
regularization of their possession over the Writ land but said suit was also
dismissed on 02.05.2016. The Petitioner and her children had also preferred
an Appeal bearing RCA No. 64 of 2016 challenging judgment and decree dated
02.05.2016, but said appeal was also dismissed on 09.06.2022. Being
aggrieved by both these judgments, the Petitioner preferred Second Appeal
bearing No. 611 of 2022 before this Court, however, on 24.02.2023, the
Petitioner with her children have withdrawn said appeal. Therefore, judgment
and decree passed by the learned Civil Judge Senior Division, Nanded came to
be confirmed by the learned First Appellate Court. Therefore, the Petitioner is
not entitled for regularization of her encroachment on said Gairan land. To
buttress this submissions, the learned AGP has placed reliance on the case of
Jagpal Singh and Ors. V/s. State of Punjab & Ors.; AIR 2011 SC 1123.
5. Needless to say that as per G.R. dated 28.11.1991, encroachment
on Gairan land can be regularized if the possession over the Gairan land is of
(5) wp 8727.24
person belonging to Scheduled Caste is found during tiller dates 1st April, 1978
to 14th April, 1990. The relevant clauses of the GR read as under:-
¼ 1 ½ fnukad 1 ,fizy 1978 vkf.k 14 ,fizy 1990 ;k dkyko/khr o fnukad
14 ,fizy 1990 jksth vfLrRokr vlysyh vfrdze.ks fu;ekuqdwy dj.;kr ;kohr %
¼ 2 ½ vfrdze.k dj.kk&;k O;Drhps fuR;kps okLrO;kps fBdk.k ¼ ;qToy Iysl vkWQ
jslhMUl ½ fu;ekuqdwy djkok;kP;k tfeuhP;k 8 fd-eh- P;k ifjljkr vlkos-
¼ 3 ½ lnj dkyko/khe/;s vfrdze.k dj.kk&;k O;Drhus vfrdzfer dsysyh tehu
fdeku ,d o'kZ rjh dlyh vlyh ikfgts-
¼ 4 ½ vfrdze.k dj.kk&;k izR;sd O;Drhps tkLrhr tkLr 2 gsDVj ftjk;r
tehu ,o<s vfrdze.k fu;ekuqdwy dj.;kr ;kos-
¼ 5 ½ vfrdze.k dj.kk&;k O;DrhdMs R;kauh /kkj.k dsysyh dkgh ftjk;r tehu
vlY;kl v'kk O;DrhP;k ckcrhr 2 gsDVj {ks= iw.kZ dj.;klkBh tso<s {ks= vko';d
vlsy rso<sp ftjk;r {ks= fu;ekuqdwy dj.;kr ;kos-
¼ 6 ½ vfrdzej.k dj.kk&;k O;Drhus vfrdze.kkP;k laiw.kZ dkyko/khrhy vkdkj.kh ¼
vlslesaV ½ vkf.k eglwy lafgrsP;k dye 20 P;k rjrwnhizek.ks naM vkdkjysyk
vlY;kl rks Hkj.ks vko";d jkghy-
¼ 7 ½ vfrdze.k dj.kkjh O;Drh tj ekxkloxhZ; vlsy rj tfeuhP;k vkdkj.khP;k
6 iVh brdh vkf.k vekxkloxhZ; vlsy rj vkdkj.khP;k 24 iV brdh
dCtsgDdkph jDde egkjk'Vª tehu eglwy ¼ ljdkjh tfeuhph foYgsokV dj.ks ½
fu;e] 1971 P;k rjrqnhizek.ks Hkj.;kl ik= jkghy-
¼ 8 ½ vfrdze.k dj.kkjh O;Drh tfeuhP;k d`f"kd okijkckcr loZlk/kkj.k ¼
vkWfMZujh ½ d`f"kd vkdkj.kh Hkj.;kl ik= jkghy- f"kok; lu 1971 P;k ljdkjh
tfeuh okVikckcrP;k fu;ekrhy fu;e 43 ¼ 1 ½ ¼ v ½ e/khy dz ¼ pkj ½ ¼ ikp ½
vkf.k ¼ lgk ½ ;k "krhZgh vfrdze.k dj.kk&;k O;Drhoj yko.;kr ;kO;kr-
¼ 9 ½ ;k fu.kZ;kizek.ks fu;ekuqdwy dj.;kr ;ko;kph vfrdze.ks fu;e 43 ¼ 1 ½
¼v½ ¼ pkj ½ ¼ ikp ½ vkf.k ¼ lgk ½ ;ke/;s fofgr dsysY;k 'krhZ o vVhauk v/khu
jkgrhy-
(6) wp 8727.24
¼ 10 ½ ;k fu.kZ;kizek.ks fu;ekuqdwy djko;kP;k vfrdze.kkackcr fu;e 11 5 e/;s
foghr dsysyh okf'kZd mRiUukph e;kZnk vkf.k fu;e 17 [kkyh foghr dsysyh tehu
okVikckcrph dk;Zi/nrh f"kFkhy dj.;kr ;koh vkf.k
¼ 11 ½ tehu iznkukps vkns"k vkf.k lunk vfrdze.k dj.kk&;k O;DrhP;k vkf.k
R;kP;k iRuhP;k ¼ vfookfgr fo/kwj fo/kok O;Drh lksMwu ½ ukokus "kklu ifji=d]
eglwy o ou foHkkx dz-,y,uMh-1089 @1044 @86&v&1 fnukad 7 es e/;s
fnysY;k lwpukaizek.ks dk<.;kr@ns.;kr ;kosr-
6. In the case in hand the Petitioner claimed that since 1984, her
father in law was in possession of said land and after demise of her father in
law, her husband was in possession and was cultivating the Writ land, so also
after her husband's death, she is in possession and cultivating the Writ land
after demise of her husband. During life time of her father in law he had
submitted an application for regularization over the Gairan land as per G.R.
dated 28.11.1991. Thereafter, the Revenue Department made an enquiry and
prepared spot Panchnama on 25.01.2011 stating therein that the deceased
Bhima, Gangaram and Petitioner are having possession over the land.
Accordingly, on 29.09.2010, the Respondent No.3 sent a proposal for
regularization on Gairan land to the Respondent No. 2 Collector, Nanded, but
her possession over said Gairan land was not regularized.
7. In the case of Jagpal Singh and Ors. (supra), the Hon'ble Supreme
Court held as under:
"22. Before parting with this case we give directions to all the State
Governments in the country that they should prepare schemes for
(7) wp 8727.24
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."
8. Needless to say that, on 29.09.2010, the Sub-Divisional Officer,
Nanded submitted a report and observed that as per G.R. dated 28.11.1991 all
the encroachments on Gut No. 679 were regularized but as per order dated
16.03.1989, the Writ land ad-measuring 2.02 HR was given to the Maharashtra
Khadi Gramodyog Mandal for development of Rayon Industry and
encroachment of the Petitioner's father-in-law was not regularized. On
19.07.2007 the Maharashtra Khadi Gramodyog Mandal returned said land
because of non utilization. Therefore, it appears that the father in law of the
Petitioner was not in actual possession of the Writ land on 16.03.1989 and on
19.07.2007. Merely revenue record from 1982-83 to 1999-2000, 7/12 extract
(8) wp 8727.24
of 1983-84 encroachment of Petitioner's father in law was shown to the extent
of 60 R and Pere-Patrak (Cultivation Record) of 1983-84 to the extent of 1.00
H.R., but no land hold lease was shown in the name of Petitioner's father in law
as per G.R. dated 28.11.1991.
9. In the case of Balwant Singh & Anr. vs. Daulat Singh (Dead) by Lrs
& Ors.; (1997) 7 SCC 137, the Hon'ble Supreme Court of India has held that
mutation of property in revenue records neither creates nor extinguishes title to
the property nor has it any presumptive value on title. Such entries are relevant
only for the purpose of collecting land revenue.
10. In case of Suraj Bhan & Ors. V/s. Financial Commissioner & Ors.;
(2007) 6 SCC 186, the Hon'ble Supreme Court of India has held that an entry
in revenue records does not confer title on a person whose name appears in
record-of-rights. Entries in the revenue record or jamabandi have only "fiscal
purpose" i.e. payment of land revenue, and no ownership is conferred on the
basis of such entries.
11. It is not in dispute that late Shri Gangadhar Bhima Chappewar, the
husband of the Petitioner had filed Regular Civil Suit bearing (R.C.S.) No. 2 of
2005 before the Civil Court and prayed for decree of declaration and
permanent injunction but the said suit was dismissed. Not only this but the
Petitioner with her children had also filed a civil suit bearing R.C.S. No. 944 of
(9) wp 8727.24
2012 for declaration that they are entitled for regularization of their possession
over the Writ land. On 02.05.2016, the learned Civil Judge Sr. Dn., Nanded
passed judgment and declined to grant decree of declaration and injunction in
respect of Writ land. Thereafter, Petitioner and her children had preferred an
appeal bearing R.C.A. No. 64 of 2016 challenging judgment and decree dated
02.05.2016 but said appeal was also dismissed on 09.06.2022. Being aggrieved
by the concurrent findings of both the Courts below, the Petitioner and others
had preferred Second Appeal bearing S.A. No. 611 of 2022 before this Court,
however, on 24.02.2023 the Petitioner with her children have withdrawn the
said Second Appeal. Therefore, judgment and decree passed by the learned
Civil Judge Senior Division, Nanded was confirmed by the learned First
Appellate Court. Therefore, under these circumstance, unless judgment and
decree passed by the learned Civil Judge, Sr. Dn., which was confirmed by the
learned First Appellate is set aside the Petitioner is not entitled for
regularization of her encroachment on the Gairan land.
12. Nonetheless, the Petitioner has not pleaded that, she is landless
lady belonging to Scheduled Caste or Schedule Tribe, therefore, as per law laid
down in the case of Jagpal Singh and Ors. (supra), the Petitioner is not
entitled for regularization of her encroachment on said Gairan land.
( 10 ) wp 8727.24
13. In view of above discussion, this Petition is dismissed. Rule is
discharged.
[Y.G. KHOBRAGADE, J.] [RAVINDRA V. GHUGE, J.]
mub
