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Judgment
Rule. Rule made returnable forthwith. Heard finally with consent of the parties.
The petitioners, who concededly are encroachers, are assailing the order dated 05.12.2017 rendered by respondent 5 in revision, whereby and
whereunder respondent 5 held that the notice dated 18.05.2015 issued by respondent 4, Estate Manager, Maharashtra State Farming (Corporation)
calling upon the petitioners to vacate the encroached land, is legal.
The petitioners contend that the encroached land is occupied by the petitioners before 1990, and that, in view of the policy of the State Government
as is manifested in the Government Resolutions dated 28.11.1991 and 14.08.2001, the petitioners are entitled to regularization of the encroached land.
The petitioners contend that they belong to the Bhilla Adivasi community which is a scheduled tribe.
The petitioners contend that some of the petitioners or their predecessors were parties to Writ Petition 1778 of 1986 Pradip D. Prabhu Vs. State of
Maharashtra and Others, in which the Hon’ble Supreme Court passed an order dated 07.03.1995 directing the State of Maharashtra to appoint
responsible officers in diferent districts to examine the claims of Aadivasis who are in possession of land and decide their claims for regularization in
accordance with law and the extant instructions. The Hon’ble Supreme Court further observed that while deciding rights of the aadivasis for
regularization, the concerned officers shall give an opportunity to them to be heard and to adduce evidence in support of their claims and till the
matters are finally disposed of, the aadivasis shall not be dispossessed. The petitioners contend that notwithstanding the directions issued by the
Hon’ble Supreme Court, the State Government has not initiated steps to regularize the possession of the aadivasis qua government lands.
The petitioners contend that applications were preferred before the authorities of the State Government seeking regularization of possession over
the government lands, which applications were kept in cold storage. The aadivasis, including most of the petitioners, approached the Hon’ble High
Court in Writ Petition 454 of 2001 under the aegis of an unregistered organization named and styled as “Bhumi Hakka Andolan Samitiâ€. The
petitioners submit that the High Court disposed of Writ Petition 454 of 2001 by observing thus:
“We however observe that if the Government Officers have initiated the proceedings, as per the applications of the petitioners, it is desired that the
Government shall complete such enquiries in accordance with law and policy decision taken by the Government as early as possible. It is also desired
that the procedure and the protection offered by the Apex Court in Writ Petition No.1778 of 1986 should also be looked into by the Government
Officers while disposing of the applications made by the members of the petitioner association.â€
The petitioners contend that the State Government did not take the directions issued by the High Court seriously and the enquiry was not taken to
the logical end, although the aadivasis including the petitioners were willing, and indeed eager, to adduce evidence in support of their claim. Dissatisfied
with the inaction of respondent 2, the petitioners and others filed Revision 309 of 2004 before the Additional Divisional Commissioner, Nashik, which
came to be allowed vide order dated 27.09.2011 and the Sub-Divisional Officer, Shrirampur was directed to conduct and complete the enquiry. The
petitioners contend that the Sub-Divisional Officer has neither completed the enquiry nor has otherwise decided the matter and that it is safe to
assume that the claim of the petitioners is pending. The petitioners submit that while respondents 1 and 2 and their subordinate officers did not decide
the lawful claims of the petitioners, respondent 4-corporation issued communication dated 18.05.2015 directing the petitioners to vacate the
encroached land. It is this communication dated 25.05.2015, which is assailed in the present petition.
The corporation has filed an affidavit in response dated 05.12.2019. The corporation contends that in proceedings under the Maharashtra
Agricultural Land (Ceiling on Holding) Act, 1961 (Ceiling Act), the lands owned by Godavari Sugar Mills Ltd were declared surplus, as is discernible
from the gazette notification dated 14.03.1963. The land covered by the government notification initially vested with the State Government free from
all encumbrances. The State Government took possession of the land from Godavari Sugar Mills Ltd on 20.05.1968 and delivered the same to the
corporation on even date for cultivation and management under Section 28 of the Ceiling Act. The corporation contends that the land situated in village
Rastapur and other lands which were owned by Godavari Sugar Ltd vested with the corporation in occupancy rights in view of the order of grant
dated 13.08.1970, which is issued in exercise of power under Section 28(1AA) of the Ceiling Act.
The corporation contends that the land is duly mutated in the 7/12 extract and the relevant entry is 2927. The corporation contends that the land
which is encroached by the petitioners forms part or portion of the land which initially vested with the State Government and then vested in ownership
rights in the corporation in view of the order of grant dated 13.08.1970. In essence, the submission of the corporation is that the land which is
encroached by the petitioners is not government land and is owned by the corporation.
The corporation contends that a policy decision was taken to make available land owned by the corporation for joint cultivation and tenders were
published. Successful bidders were finalized and agreements were executed. In the process, the encroachment made by the petitioners came to light
which has constrained the corporation to issue notice dated 18.05.2015. The corporation contends that the petitioners assailed the notice/s dated
18.05.2015 in Writ Petition 5523 and 5524 of 2015, which came to be disposed of by the learned Division Bench vide order dated 02.08.2016. It would
be relevant to reproduce paragraph 3 of the order of the Division Bench.
“3. It appears that pursuant to order passed by the Apex Court and this Court in the proceedings referred to above, some panchnamas were
conducted, however, no decision was taken by the State Government for regularization of their possession over the land Respondent â€" State
Government may take decision upon the same as expeditiously as possible preferably within six months from the date of this order. Before taking any
decision the authority concerned of State shall hear the petitioners as well as the Corporation. Respondents - Corporation cannot take law in its hand.
Notice issued by the Corporation itself suggest that if petitioners do not remove their constructions then the Corporation would take action as per the
Government Rules which would presuppose that they would follow procedure of law. In that case, the petitioners may take up proceedings as may be
permissible in law.â€
The corporation contends that in view of the order of the learned Division Bench, which petitioners invited in the context of the submission that the
issue of regularization was pending, the respondent 5 decided the issue and held that the action of eviction initiated by the corporation by issuing notice
dated 18.05.2015, is legal.
The corporation contends that in view of the provisions of Section 40 of the Ceiling Act, the corporation is authorized to remove the encroachment.
Paragraph 6 of the affidavit in response filed on behalf of the corporation reads thus:
“6) Answering respondents states and submits that, after giving sufficient opportunity and vouching entire record available before Hon’ble
Minister vide order dated 05.12.2017 Hon’ble Minster was pleased to hold that notices issued by Corporation answering respondents are legal and
valid. In such circumstances petitioners have no right to remain in possession on the encroached portion. Respondent No.2 is having every authority to
remove encroachment as per Section 40 of Maharashtra Agricultural (Ceiling on Holding) Lands Act, 1961. As per the provisions of Section 21 the
said Act, the own lands of industrial undertakings and lands leased to them were declared as surplus and were taken in possession by the State
Government. As per Section 21(2) and (4) of the said Act, the said surplus lands are vested with the State Government free from all encumbrances.
Thereafter as per Section 28 of the Act those lands were given to Respondent Corporation for management and cultivation. Answering Respondent
has also paid necessary occupancy price of the said lands to State Government. Thus, these lands since notification absolutely vests with the
answering Respondents Corporation free from all encumbrances. therefore it is not a Government land. Therefore, now it is not a Government Land.
The pleadings of petitioners that the land belongs to State Government are specifically and persistently denied by this Respondent. In above mentioned
situation the Government Resolutions dated 28.11.1991 and 14.08.2001 as referred by petitioners are not applicable to the land owned and possessed
by Respondent Corporation. The Government Resolutions are very clear and it unequivocally states that the encroachments on Government land only
can be regularized. Petitioners are making factually incorrect and frivolous statement about the area of encroachment. In fact there is no such
encroachment as alleged by petitioners to the extent of area. The foregoing paragraph clarifies the situation. Reference to judgment in SLP Civil
No.1778/1986 of Hon’ble Apex Court dated 07.03.1995 and Writ Petition No.454/2001 is not applicable in case in hand as lands are owned by
Corporation and not by the State Government. Claim of petitioners that land should be allotted to them is beyond provisions of Maharashtra
Agricultural (Ceiling on Holding) Lands Act, 1961, said demand as not within four corners of law cannot be granted.â€
The petitioners have filed a rejoinder affidavit dated 10.02.2020, which is handed over across the bar. The petitioners assert that the notice dated
18.05.2015 is issued only to 18 out of 41 petitioners. The petitioners contend that the mutation entry 2927 makes no reference to order of grant dated
13.08.1970 and further the copy of order dated 13.08.1970 is incomplete and illegible. The alternate contention in the rejoinder affidavit is that the
order dated 13.08.1970 was not acted upon and that the proposal to lease the land covered by the grant order for joint cultivation is violative of the
terms and conditions of the grant. It is further stated that the corporation did not pay the occupancy price till 2005 and therefore, the order of grant
dated 13.08.1970 does not confer title in favour of the corporation. A desperate submission is finally made that the petitioners have perfected title by
adverse possession.
Before considering the submissions canvassed on behalf of the petitioners, it would be necessary to note the articulation of the Hon’ble
Supreme Court in Jagpal Singh and Ors Vs. State of Punjab and Ors, 2011 AIR SCW 990.
The Hon’ble Supreme Court cautioned that illegal encroachment on Gram Panchayat land, which invariably occur in collusion with the State
Machinery and the Gram Panchayat, must be dealt with iron hand and the blatant illegalities cannot be condoned. The Hon’ble Supreme Court
observed that even if houses are built on the encroached land, the construction must be demolished and the possession of the encroached land must be
handed over to the Gram Panchayat. While parting with the judgement, the Hon’ble Supreme Court issued the following directions:
“22. Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for 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.â€
The petitioners are relying on Government Resolutions dated 28.11.1991 and Government Resolution dated 14.08.2001. Perusal of the said
government resolutions would reveal that it is only the encroachment on government land stricto sensu, which is the subject matter of two government
resolutions. By virtue of government resolutions dated 28.11.1991, the State Government took policy decision to regularize encroachments. The policy
underwent a change in view of the subsequent government resolution dated 12.07.2011. The implication of the change in policy is considered by a
learned Single Judge in Bhagwan Kisan Wagh and Ors Vs. State of Maharashtra and Ors, 2016(5) ALL MR 847, thus:
“8] It would be first necessary to consider whether the petitioners can claim a vested right for seeking consideration of their applications for
regularization of encroachments in terms of Government Resolution dated 28-11-1991. This would have to be considered in the light of the fact that
when the applications for regularisation were pending, another Government Resolution dated 12-7-2011 indicating a change in policy came into effect.
The question whether an applicant would have a vested right to seek consideration of his request on the basis of the date when he had so applied has
been considered by the Hon'ble Supreme Court in Howrah Municipal Corpn. v. Ganges Rope Co. Ltd. (2004) 1 SCC 66.3 In said case, an application
for sanction for construction was made by a Company. As the sanction was neither granted nor refused within the prescribed period, the Company
had approached the High Court in that regard. The High Court had directed the Municipal Corporation to consider grant of sanction subject to
fulfillment of requirements. When the application for sanction was pending, the Building Rules were amended due to which the sanction as sought was
not granted. In that background while considering the question as to whether any vested right had been created in favour of the Company despite
subsequent amendment to the Building Rules, it was observed by the Hon'ble Supreme Court that with long usage the word ""vest"" has also acquired a
meaning as ""an absolute or indefeasible right."" What the Company had was only a ""legitimate"" or ""settled expectation"" to obtain the sanction. The
same did not create any vested right to obtained the sanction. The following observations in para 37 of the aforesaid judgment clarify the position.
37......................What we can understand from the claim of a ""vested right"" set up by the respondent Company is that on the basis of the Building
Rules, as applicable to their case on the date of making an application for sanction and the fixed period allotted by the Court for its consideration, it had
a ""legitimate"" or ""settled expectation"" to obtain the sanction. In our considered opinion, such ""settled expectation"", if any, did not crate any vested right
to obtain sanction. True it is, that the respondent Company which can have no control over the manner of processing of application for sanction by the
Corporation cannot be blamed for delay but during pendency of its application for sanction, if the State Government, in exercise of its rule-making
power, amended the Building Rules and imposed restrictions on the heights of buildings on G.T. Road and other wards, such ""settled expectation"" has
been rendered impossible of fulfillment due to change in law. The claim based on the alleged ""vested right"" or ""settled expectation"" cannot be set up
against statutory provisions which were brought into force by the State Government by amending the Building Rules and not by the Corporation
against whom such ""vested right"" or ""settled expectation"" is being sought to be enforced. The ""vested right' or settled expectation has been nullified not
only by the Corporation but also by the State by amending the Building Rules, Besides this, such a ""settled expectation"" or the so-called ""vested right
cannot be countenanced against public interest and convenience which are sought to be served by amendment of the Building Rules and the resolution
of the Corporation issued thereupon.
From the aforesaid observations, it is clear that the petitioners merely had a ""settled expectation"" in the matter of regularization of their encroachment
under Government Resolution dated 28-11-1991 and not any vested right“
The implication of the change in the policy apart, the question is whether there is any legal right existing in favour of the petitioners, even for
consideration of regularization, much less a vested legal right. In my considered view, the answer must be in the negative. The government resolutions
on which reliance is placed, has no applicability to the factual matrix. Notwithstanding the desperate argument, that in view of the delayed payment of
the occupation charges, the corporation is not the owner of the land in question, I have no hesitation in holding that in view of the provisions of the
Ceiling Act and the order dated 13.08.1970, the land which is encroached vests in the corporation, which is a distinct juristic entity. The land owned by
the corporation cannot be equated with the land owned by the State Government, and therefore, the submission which is constructed on the edifice of
the government resolutions needs consideration only for rejection.
In response to a specific query, the learned counsel for the petitioners fairly states that the only basis of the claim for regularization is the
government resolutions. In view of my finding, that the government resolutions do not take within their land owned by the corporation, and the
refutable and indubitable position that the encroached land is owned by the corporation, there cannot be even an iota of doubt that the petitioners have
no right to claim regularization of the encroached land.
I cannot be unmindful of the ground reality that dishonesty is often rewarded. The petitioners are encroachers and openly and if I may say so
audaciously, claim to have encroached on the government land. The policy of regularization of encroachment, even if it is assumed that the validity of
such policy is not in issue, would have to be strictly construed. The petitioners were under heavy burden to demonstrate that they have a semblance of
right to protect the illegal possession. The petitioners have miserably failed to discharge the burden. The petition is wholly substanceless and is
rejected.
This Court hopes that the action of eviction shall be taken to the logical end, as expeditiously as possible and in any event within 90 days.
At this stage, the learned counsel for the petitioners states that he is instructed by all the petitioners to undertake that the possession of the entire
encroached land shall be voluntarily and peacefully delivered to the corporation on or before 30.03.2020. The learned counsel for the petitioners
further states that the petitioners are aware that breach of the undertaking may entail initiation of contempt of Court proceedings.
In view of the undertaking, the possession of the petitioners is protected till 30.03.2020.
The learned counsel for the petitioners states that the petitioners shall also file in the registry individual undertakings within two weeks. It is made
clear that whether or not individual undertakings are filed, the statement made on behalf of the petitioners by the learned counsel shall continue to
operate as an undertaking solemnly given to this Court.
Rule is discharged.