[Cites 6, Cited by 0]
Bombay High Court
Prashant Sunil Kachole And Anr vs The State Of Maharashtra Thr. Housing ... on 10 March, 2026
Author: M.S.Karnik
Bench: M.S.Karnik, S.M.Modak
2026:BHC-AS:11707-DB
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Digitally signed
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
URMILA by URMILA
PRAMOD
PRAMOD INGALE
Date:
CIVIL APPELLATE JURISDICTION
INGALE 2026.03.10
17:58:31 +0530
WRIT PETITION NO. 17617 OF 2025
1. Prashant Sunil Kachole
Aged 31 years, Occ: Social worker
Indian Inhabitant of Mumbai
Residing at :- Rohkal, Tal-Khed, Dist.Pune
2. Nilesh Shankar Kad
Age 45 years
At Post Chakan, Tal. Khed,
Dist. Pune ... Petitioners
Versus
1. The State of Maharashtra
Through Housing
Department, Mantralaya, Mumbai
To be served through Government
Pleader, High Court, Bombay (A.S.)
2. The Collector, Pune
To be served through Government
Pleader, High Court, Bombay (A.S.)
3. PMRDA Pune Metropolitan
Region Development Authority,
Maharaja Sayaji Gaikwad Udyog
Bhavan, Ward No. 8,
Survey No. 152-153,
Aundh, Pune- 411 067.
4. The MHADA
(Maharashtra Housing and Area
Development Authority)
Through its Chief Executive Officer
Office situated at Pune
The Chief Executive Officer,
Zilla Parishad Pune
1
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5. The Deputy Conservator of Forests
(Territorial) Junnar,
Dadaji Kondeve Wada, Near Trazari
Building, Junnar, Pune - 410 502. .... Respondents
****
Mr.Vaibhav Ugle a/w Mr. Aditya Shinde, for the Petitioners.
Mr. Rohit Sakhadeo, for the Respondent No.3.
Dr. Milind Sathe, Advocate General a/w Mr. P.G. Lad and Ms.
Sayali Apte, for Respondent No.4-MHADA.
Dr. Milind Sathe, Advocate General a/w Mr. O.A. Chandurkar,
Addl. GP and Smt. Tanu N.Bhatia, AGP and Mr. Bhushan
Deshmukh, 'B' Panel, for Respondent - State.
****
CORAM : M.S.KARNIK &
S.M.MODAK, JJ.
RESERVED ON : 9th MARCH 2026
PRONOUNCED ON : 10th MARCH 2026
JUDGMENT (PER M.S.KARNIK, J) :
1. Invoking the jurisdiction of this Court under Article 226 of
the Constitution of India, the petitioners seek to challenge the
order dated 01/06/2025 passed by respondent no.2 -the Collector,
Pune and the Government Resolution dated 15/10/2024 issued by
the respondent no.1- State of Maharashtra. Further relief is sought
for a direction to respondent no.1- State of Maharashtra to hold
necessary inquiry in respect of representations made by the
petitioners and subject to outcome of such inquiry, to initiate
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necessary action against the concerned persons. It is further
prayed for a direction to the respondents to cancel the
reservation/residential scheme which is being implemented by the
respondents on the "Gairan Land" (grazing land).
The facts of the case in brief are as under:
2. Petitioner no.1 is the resident of Rohkal, Taluka-Khed, District-
Pune. The grievance of the petitioners is that the Collector of Pune
passed an order of transfer of the grazing land without consulting
respondent no.3-Pune Metropolitan Region Development Authority
('PMRDA', for short) which is the planning authority. Respondent
no. 4- the Maharashtra Housing and Area Development Authority
('MHADA', for short) is the beneficiary of the said transfer. It is the
petitioners' case that respondent no.5-the Deputy Conservator of
Forests (Territorial), Junnar has given consent without the gram
sabha approval. It is the petitioners' case that respondent no.2
issued the order of transferring the grazing land for
implementation of the residential scheme which was to be
implemented under the supervision of respondent no.4. The
scheme was to be implemented on the land situated at Gat No.
220, Rohkal, Taluka-Khed, District-Pune. The land in question is a
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grazing land. A portion of the said land is inhabited by the
Scheduled Tribe ('ST', for short) and Scheduled Caste ('SC', for
short) community and without taking the villagers in confidence, it
was decided that the ST community be evicted from the subject
land. It is also the case of the petitioners that around 5000 trees
planted by social forestry are likely to be cut. The case of the
petitioners is that the said transfer is contrary to the provisions of
the Maharashtra Land Revenue Code, 1966 ('Code of 1966', for
short). It is further submitted that without finalizing the list of
beneficiaries and without confirming a single beneficiary, MHADA
wants to implement the 'Pradhan Mantri Awas Yojana Scheme-
Urban 2.0' ('PMAY', for short) which is illegal. The petitioners
therefore preferred a representation before the concerned
authorities. Learned counsel for the petitioners therefore
submitted that the action on the part of the respondents of
transferring the grazing land is illegal and contrary to the
provisions of law as it affects the interests of not only the villagers
but is also prejudicial to the inhabitants belonging to the SC and
ST community.
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3. We have heard Mr.Ugle, learned counsel for the petitioners,
Mr. Sakhadeo, learned counsel for respondent no. 3 and Dr.Milind
Sathe, learned Advocate General appearing for respondent no.4
and learned Additional Government Pleader for respondent-State.
Perused the affidavit in replies filed by the respondents.
4. Though an objection as to the maintainability of this writ
petition was raised challenging the locus of the petitioners, we
proceed to consider the submissions on merits considering that
petitioner no.1 is a resident of the said village. There is no dispute
that land in question is a government owned land. Being a
government owned land, the petitioners cannot claim any vested
right to use the said land for any specific purpose. The question is
whether the land is reserved for the residential scheme to be
implemented has been so reserved by following the appropriate
legal process.
5. Learned AGP submitted that the present reservation of land
falls under the category of public purpose, over which PMAY is
being implemented which is a permitted activity on the said
reserved land. The GR dated 19/09/2016 was issued by the
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Revenue and Forest Department, Government of Maharashtra
whereby a policy decision was taken to make available government
land for implementation of approved projects under the PMAY. By
GR dated 19/09/2016, the State Government has expressly
authorized the District Collectors to allot government land to
implementing agencies such as MHADA, local authorities and
other Government or semi-Government bodies in exercise of
powers under Section 40 of the Code of 1966 read with Rule 5 of
the Maharashtra Land Revenue (Disposal of Government Land)
Rules, 1971 subject to prescribed terms and conditions. Pursuant
to the said policy, the MHADA, vide letter dated 24/04/2025,
requested the Collector, Pune for allotment of government land
admeasuring 15 Hectares 76 R at Gat no. 220 of Village Rohkal,
Taluka Khed, District-Pune for construction of residential houses
under the Pradhan Mantri Awas Yojana (Urban). After seeking
inputs from Tahsildar Khed, the Circle Officer was instructed to
inspect the site and submit a report. The report indicated that
land is a Gairan land. The report records that the said land parcel
is adjacent to Rohkal to Pimpri Khurd Road and that a Dashkirya
Ghat (cremation area) exists on the southern side of the land and
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that certain Thakar tribal families are residing in tin sheds on the
said portion of the land.
6. Accordingly, after receiving the report from the Circle Officer,
Tahsildar prepared and submitted a detailed report dated
05/05/2025 to the Sub-Divisional Officer, Khed certifying that the
said land is a Government Gairan land and is suitable for the
proposed public purpose.
7. The Forest Department examined the proposal and issued its
communication stating that the subject land is not included in any
reserved forest. The PMRDA submitted its remark stating that Gat
No. 220 falls under public and semi-public use as per the draft
development plan and that the proposed housing use is
permissible under Rule 21.9(a) of the Development Control and
Promotion Regulations, 2018.
8. The Chief Executive Officer, Zilla Parishad, Pune, by letter
dated 20/05/2025 communicated no objection for transfer of the
said land for implementation of the Pradhan Mantri Awas Yojana.
Subsequently, the Group Development Officer, Panchayat Samiti,
Khed, by letter dated 03/06/2025 requested issuance of a
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correction order by excluding 0.30 R area reserved for 21
individual beneficiaries of the Pradhan Mantri Awas Yojana,
thereby making the net land admeasuring 15 Hectares 46 R
available.
9. We thus find after considering all the aforesaid documents and
reports that the Collector, Pune has passed a reasoned order dated
12/06/2025 granting permission to MHADA to implement the
PMAY on a government land admeasuring 15 Hectares 46 R from
Gat No. 220. The said order grants advance possession subject to
compliance with statutory provisions and safeguards the rights of
existing inhabitants. From the order dated 16/06/2025 of the
Sub-Divisional Officer, Khed, it is seen that MHADA has been
directed to rehabilitate the Adivasi/Thakar families by allotting
10.50 square metres of land to them within the same Gat number,
thereby ensuring that no displacement takes place without lawful
rehabilitation.
10. We have also perused the affidavit in reply filed by the
respondent no. 4 on behalf of MHADA. As indicated earlier
MHADA is carrying out a project known as 'Pradhan Matri Awas
Yojana-Urban 2.0'. The said project is a flagship project of the
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Ministry of Housing and Urban Affairs, Government of India. The
said project has been launched with a mission of providing housing
for all to fulfill the need for housing in the urban areas. Under the
said scheme, affordable houses are being offered to the
economically weaker section category as well as to all other people
who fulfill the criteria under the said scheme. MHADA is the
implementing authority for the said project. As per UDCPR, the
proposed reservation is for public amenities and ODR-58, 18 mtrs
and 15 mtrs are proposed. The land is within 200 mtrs radius
from village (gautha) and as per Development Control
Regulations, 2018 ('DCR', for short) more particularly, Regulation
21.9(a) for Development of Houses under Pradhan Matri Awas
Yojana, the permission of Development Authority is necessary.
Respondent no.5- The Deputy Conservator of Forests (Territorial),
Junnar has given consent.
11. Gam Panchayat's objection has been considered by the
Collector in the order dated 12/06/2025. Even after the aforesaid
order dated 12/06/2025, the Collector, Pune had held a meeting
on 24/09/2025 of all concerned including Tahsildar and Sarpanch
of Village - Rohakal. In the said meeting, all the objections were
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considered by the Collector, Pune and after considering the said
objections, the Collector Pune had decided to make alternate land
along with other basic amenities available for villagers in the
adjacent land bearing Gat No. 223. MHADA has forwarded the
minutes of the said meeting vide its letter dated 08/10/2025 to
the Collector, Pune. Thus, in the said meeting, Collector, Pune has
taken care of the concerns of the local residents of the said village
and has assured to make alternate land and funds available.
12. In the context of the present case, it will be necessary to
extract Section 22A of the Code of 1966 which was relied upon by
MHADA which reads thus :
""22A. Prohibition on diversion of use of Gairan Land-
(1) The land set apart by the Collector for free pasturage of village
cattle (hereinafter referred to as "the Gairan Land") shall not be
diverted, granted or leased for any other use, except in the
circumstances provided in sub-sections (2) or (3), as the case may
be.
(2) The Gairan land may be diverted, granted or leased for a public
purpose or public project of the Central Government or the State
Government or any statutory authority or any public authority or
undertaking under the Central Government or the State Government
(hereinafter in this section referred to as "Public Authority"), if no
other suitable piece of Government land is available for such public
purpose or public project.
(3) The Gairan land may be diverted, granted or leased for a project
of a project proponent, not being a Public Authority, when such
Gairan land is unavoidably required for such project and such project
proponent transfers to the State Government, compensatory land as
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provided in sub-section (4) and (5).
(4) The compensatory land to be transferred to the State
Government under sub-section (3) shall be in the same revenue
village have area equal to twice the area of the Gairan land and its
value shall not be less than the value of the Gairan land so allotted
under sub-section (3):
Provided that, the area of compensatory land shall have to be
suitably increased, wherever necessary, so as to make its value equal
to the value of the Gairan land so allotted under sub-section (3).
(5) The compensatory land to be transferred to the State
Government under sub-section (3) shall, notwithstanding anything
contained in any other law, rule or orders made thereunder, be
assigned by the Collector under section 22 for the use only of free
pasturage of village cattle or for grass or fodder reserve.
(6) The powers of diversion, grant, lease of Gairan land under this
section shall be vested in the State Government:
Provided that, notwithstanding anything contained in section 330A,
the powers of the State Government under sub-section (3) shall not
be delegated to any officer or other authority sub-ordinate to it.
(7) Notwithstanding anything in sub-sections (1) to (6) or any other
provision of this Act, Gram Sabhas shall be competent to preserve,
safeguard and manage Guiran land in Scheduled Areas:
Provided that, no Gairan land in the Scheduled Areas shall be
diverted or disposed of without the prior informed consent of the
Gram Sabhas concerned."
13. A reading of the provisions indicates that Gairan land can be
used or diverted for a public purpose or public project. In terms of
the communication dated 12/06/2025, the MHADA has, vide its
letter dated 10/07/2025 submitted a Deed of Guarantee to the
Tahasildar Khed. Perusal of the clause 7 of the allotment order
dated 12/06/2025 indicates that clause 7 mandates the
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implementing authority to plant the trees. Clause 8 of the said
order mandates the implementing authority to make sure that the
said people are rehabilitated.
14. The PMAY is a scheme undertaken by the Central and State
Government to discharge the obligation under Article 21 and
Article 39(b) of the Constitution. MHADA has already issued a
tender on 04/11/2025 for construction of 8001 number of 1 BHK
dwelling units for residential purpose of economically weaker
section beneficiaries including construction of all required on-site
and off-site infrastructure supporting self-sustainability under the
said project. The said tender has been issued for an estimated cost
of Rs.11,60,94,51,000/-. We thus find that the said transfer is
permissible under the Code of 1966 and proper procedure has
been followed by the respondents while transferring the said
Gairan land which is to be used for public purpose.
15. Learned Advocate General invited our attention to the
decision of this Court dated 12/09/2024 in Santosh Madhukar
Bhondve and ors. Vs. State of Maharashtra and ors. in Writ Petition
No. 3098 of 2021. Paragraphs 22 to 26 of the said decision read
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thus :
"22. Main plank of argument of Shri Anturkar, learned Senior
Advocate representing the petitioners is that in terms of the provisions
contained in Section 22A of the MLRC, 1966, Gairan land cannot be
diverted or granted or leased for any other use and since in this case
Gairan land has been allotted in favour of respondent No.4 -
Corporation for use of construction of houses for economically weaker
section, the same is illegal being violative of the prohibition contained
in Section 22A of the MLRC, 1966. It is his further submission that
exception to prohibition as carved out in sub Section (2) of Section
22A of the MLRC, 1966 will operate only with a pre-condition that
Gairan land may be diverted or granted or leased for public
purpose/project only if no other suitable land of the Government is
available for such public purpose/project and in the instant case,
there is nothing on record to establish that any other Government
land was available for the construction of houses for economically
weaker section under the PMAY. Thus, it is his contention that the
allotment was is unlawful.
23. However, the said submission of Shri Anturkar on behalf of the
petitioners has to be scrutinized keeping in mind what Section 40 of
the MLRC, 1966 provides for. The said submission also needs to be
tested on the legal proposition as argued by Shri Kumbhakoni,
learned Senior Advocate representing respondent No.4 - Corporation
that in view of the provisions of Section 3(3)(a) and 3(3)(b) of the
Corporations Act, 1949 on inclusion of subject land within the
municipal area of respondent No.4 Corporation, the provisions of the
MRTP Act, 1966 and the Development Plan sanctioned by the State
Government under Section 34/35 of the MRTP Act, 1966 will operate
and therefore, any violation of the land use as determined by the
Development Plan prepared under Section 34/35 of the MRTP Act,
1966 will not be permissible.
24. Section 40 of the MLRC, 1966 as extracted above, vests almost
absolute right in the State Government to dispose of any land or
property of the Government on such terms and conditions as it deems
fit. The language in which Section 40 is couched leaves no room of
doubt that the right of the State Government to dispose of any of its
land or property is irrespective of any provision of MLRC, 1966 for
the reason of opening phrase occurring in Section 40 is "nothing
contained in any provision of this Code". Thus, we are of the opinion
that by operation of Section 40 of the MLRC, 1966, the State
Government is vested with right to dispose of any land of the
Government on such terms and conditions which are to be
determined by it irrespective of any other provision available in
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MRLC, 1966 including Section 22A. Such, an interpretation of Section
40 qua Section 22A of the MLRC, 1966 is based on the rationale that
the Government is the absolute owner of its own property and land
and hence, putting any fetter on the right of the Government to
dispose of any property on the terms and conditions to be determined
by it, in our opinion, will not be permissible and therefore, in the view
of the Court, notwithstanding the prohibition contained in Section
22A of the MLRC, 1966, the Government still will have all the
authority and power to dispose of its land.
25. It is further noticed that Section 3(3)(a) of the Corporations act,
1949 permits the State Government to exclude or include by way of
alteration of limits to exclude or include any area from the municipal
limits by its alteration. Section 3(3)(b) provides that in case any area
is included within the municipal limits of a Municipal Corporation by
the State Government in exercise of its powers available to it under
Section 3(3)(a) various acts, such as appointments, notifications,
notices, taxes, orders, schemes, licenses, permissions, rules, bye-laws
etc. made or issued or imposed or granted under the Corporations
Act, 1949 or any other law for the time in force, shall apply to and be
in force in the additional area also from the date of its inclusion in the
municipal limits under Section 3(3)(a). The relevant phrase occurring
in Section 3(3)(b) is various acts done under "this Act" that means the
Municipal Corporations Act or "any other law". Thus, any act of the
Municipal Corporation referable to MRTP Act, 1966 will be covered
by the phrase "any other law" occurring in Section 3(3)(b) of the
Corporations Act, 1949. Since the Development Plan for the
additional area is prepared by the Corporation with the sanction of
the State Government under Section 34/35 of the MRTP Act, 1966,
therefore, such a Development Plan will apply to and shall be in force
in respect of the additional area as well. Meaning thereby, such
Development Plan will apply to the subject land for the reason that
the subject land was included in the municipal area of respondent
No.4 by the State Government vide its notification dated 11 th
September 1997.
26. The land use prescribed in the Development Plan prepared by
respondent No.4 in respect of subject land under Section 34/35 of the
MRTP Act, 1966 will operate and apply and will over-ride the use of
the subject land as Gairan land also keeping in view the provisions
contained in Section 52(2) of the MRTP Act, 1966. The reason for
such application of Development Plan is that Section 52 of the MRTP
Act, 1966 provides that any person who contravenes the provisions of
the Development Plan invites certain penal consequences. Thus, if
user of any land before its inclusion in the Municipal Corporation was
other than the user prescribed in the Development Plan prepared by
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the Municipal Corporation, after its inclusion in the municipal limits,
earlier user is impermissible and such use has penal consequences.
Therefore, we conclude that the user of the land as per the
prescription of the Development Plan prepared under Section 34/35
of the MRTP Act, 1966 in respect of the additional area will prevail
over the land use of the land in the additional area which was in
existence prior to inclusion of the additional area within the
municipal limits of the Municipal Corporation."
16. The upshot of the above discussion is that Section 40 of the
Code of 1966 vests the State Government with an overriding
authority to dispose of Government land on such terms and
conditions as it deems fit, notwithstanding anything contained in
any other provision of the Code. Consequently, the restriction
regarding diversion or grant of Gairan land under Section 22A of
the Code of 1966 does not limit the State Government's power to
dispose of such land.
17. For the aforesaid reasons, we do not find the order passed by
the Collector, Pune of transferring the said land for the purpose of
a pubic project for constructing houses for economically weaker
section of the society under the Central Government scheme, is
perverse or that the Collector, Pune while transferring the said
land has committed any illegality contrary to the statutory
provisions. The land is to be used for the public purpose. The
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aforesaid decision in Santosh Madhukar Bhondve & ors (supra)
supports the case of the respondents. We, therefore, do not find
any merit in this writ petition. The writ petition is dismissed.
(S.M.MODAK, J.) (M.S.KARNIK, J.)
18. Learned counsel for the petitioners at this stage requested for
stay of this order. We do not see any reason to stay this order at
the behest of the petitioners. The request is rejected.
(S.M.MODAK, J.) (M.S.KARNIK, J.)
