Bombay High Court
Smt. Kamalabai W/O Sampat Badwaik vs Union Of India, Thr. The Ministry Of ... on 2 May, 2025
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
2025:BHC-NAG:4585-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION No. 3811 of 2024
PETITIONER : Smt. Kamalabai W/o Sampat Badwaik,
Aged about 78 years, Occ. Household,
R/o Prabhag No. 16, At Post Parseoni,
Tah. Parseoni, Dist. Nagpur
VERSUS
RESPONDENTS 1. Union of India through the Ministry of
Rural Development Office at Krishi
Bhavan Dr. Rajendraprasad Road,
New Delhi - 110001
2. Nagar Panchayat Parseoni,
through Chief Officer, office at Tah.
Parseoni, Dist. Nagpur
3. The Tahsildar, Office at Tahsildar
Karyalaya, Parseoni, Dist. Nagpur
4. Sub Divisional Officer, through
Sub Divisional Officer / Magistrate,
Office at Ramtek
Mr. U.K. Bisen, Advocate for the petitioner.
Mrs. Suhasini Deshpande, Adv.for Respondent No.1
Mr. M.I. Dhatrak, Advocate for Respondent No.2
Mr. J.Y. Ghurde, AGP for Respondent Nos.3 and 4
CORAM: AVINASH G. GHAROTE AND
ABHAY J. MANTRI, JJ.
DATED : 2nd MAY, 2025
ORAL JUDGMENT [ Per : Avinash G. Gharote, J.]
Heard Mr. Bisen, learned counsel for the petitioner,
Mrs. Deshpande, learned counsel for the respondent No.1,
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Mr. Dhatrak, learned counsel for the respondent No.2 and Mr.
Ghurde, learned Assistant Government Pleader for the
respondent nos. 3 and 4 / State. Rule. Rule is made
returnable forthwith.
2. The petition questions the communication dated
11.6.2024 (page 22), calling upon the petitioner to vacate
the land of City Survey No. 1085, admeasuring 144.12
Sq.Mtr., situated at Parseoni Tah. Parseoni, Dist. Nagpur, as
well as the order 30.4.2024, passed by the respondent no.4,
directing the petitioner to surrender the aforesaid land, on
account of the violation of the condition of the lease on
which it was granted, as it is stated therein, that though it
was granted for residential purpose, it was being used for the
commercial purpose, and so also for the reason, that the land
was being required by the respondent No. 2 for the purpose
of constructing Food Court thereupon.
3. Mr. Dhatrak, learned counsel for the respondent
No. 2, submits that since the land is being acquired for a
public purpose, the personal interest of the petitioner, should
give way. He, therefore, tries to justify the impugned
communication and the order in this regard.
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4. Mr. Ghurde, learned Assistant Government Pleader
for the respondents No.3 and 4, supports the impugned
orders contending, that there is violation of the condition of
grant of the lease and fact, that it is being required for public
purpose.
5. The aforesaid land was granted to the petitioner,
by the State, Department of Revenue, in permanent lease
hold rights, in exercise of the powers under Rule 49 of the
Maharashtra Land Revenue (Disposal of Government Lands),
Rules, 1971. A certificate for grant of land in terms of the
Rule 49 of the Rules which is dated 19.5.2018 is filed on
record at page No.27, the issuance of which, is not disputed
by the respondent Nos.3 and 4. It is also not disputed, that
by the order dated 09.01.2023, passed by the District
Superintendent of Land Records, in Revenue Appeal
254/2022-23 (page 29) an enquiry in terms of Rule 20(2) of
the Maharashtra Land Revenue Code was directed and that in
pursuance thereto, the Deputy Superintendent of Land
Records Parseoni by its order dated 03.5.2023 has directed a
number to be given to the aforesaid land, which is City
Survey No. 1085. Both these orders record the fact that the
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aforesaid land has been granted to the petitioner on a the
permanent lease. That being the position, any acquisition of
the rights of the petitioner under the permanent lease, should
only be by way of the procedure as prescribed by law. It is
also necessary to note, that the petitioner had applied to the
respondent No.2, for grant of approval to a building plan,
which came to be approved by the respondent no.2 by calling
upon the petitioner to deposit the fees which has been so
deposited on 25.1.2023 (page Nos. 35 and 36), in pursuance
to which, sanction has been granted by the respondent no.2
on 07.02.2023 (page 37), under the Prime Ministers Housing
Scheme. It is thus apparent, that the plan for constructing
residential premise, has been approved by the respondent
no.2 upon the land of City Survey No. 1085. It is not disputed
that the construction has been made thereupon. The bone of
contention is that on a portion of the land of city survey no.
1085, certain constructions have been made, in which
commercial activities are being permitted. It is also necessary
to note, that the purpose for cancellation of the permanent
lease is stated to be a construction of a Food Court by the
respondent No. 2, which would indicate to us that in terms of
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the Building Regulations applicable the land of City Survey
No. 1085 is being capable of being put to commercial use. If
that is the position, then the permanent lease granted to the
petitioner cannot be cancelled on the ground, that the land of
city survey no. 1085, is being put to commercial use, as that
is something which is permissible in terms of the Building
Regulations. It was, therefore, not open for the respondent
No. 2 to cancel the building permission dated 07.02.2023
(page 37), granted to the petitioner or for that matter the
Sub-Divisional Officer to have passed the order dated
30.04.2024 (page 24) and for the Chief Officer of the
respondent No.2 to have issued the communication dated
11.06.2024 (page 22).
6. Though it is also contended, that an alternate
remedy is available to the petitioner to prefer an appeal,
however, in view of the fact, that the cancellation is at the
behest of the respondent No. 2 by the respondent No. 4,
however, since the constitutional right of the petitioner to
hold property and to continue to do so in terms of Article
300-A of the Constitution of India, is in question, which
cannot be deprived without following due process of law, we
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are of the opinion, that the plea of alternate remedy cannot
come in the way of the petitioner, approaching this Court
under Article 226 of the Constitution of India.
7. In view of the above discussion, we, therefore,
quashed and set aside the order dated 30.04.2024 (page 24),
as well as subsequent communication dated 11.06.2024,
issued by the respondent No.2.
8. Needless to mention, that the earlier
communication dated 21.2.2023 (page 40), by the
respondent No. 2, also would not survive.
9. The petition is allowed in the above terms. No
costs.
Rule is made absolute in the above terms.
(ABHAY J. MANTRI, J.) (AVINASH G. GHAROTE, J.)
MP Deshpande
Signed by: Mr. M.P. Deshpande
Designation: PA To Honourable Judge
Date: 02/05/2025 18:32:19
