Kanhaiya And Others vs State Of Maharashtra And Others

Rule. Rule made returnable forthwith. With the consent of the parties heard finally.

Heard learned Advocate Mr. A. L. Kanade for petitioners, learned GP Mr. D. R. Kale for respondent Nos.1 to 4 and learned Advocate Mr. V. V. Bhavthankar for respondent No.5.

By the present writ petition the petitioners are seeking direction to the respondent authorities to regularize their residential premises over the government land known as Gadipura Talabkatta Hingoli, Taluka and District Hingoli. The petitioners are relying upon the Government Resolution dated 04/04/2002, issued by the Revenue and Forest Department, Mantralaya, Mumbai, whereby a Government has taken policy decisions to regularize encroachments made over the Government lands for residential purpose (slum areas). The petitioners further prayed that the notices for eviction issued by the Tahsildar and Executive Magistrate, Hingoli dated 01/02/2020, may be stayed. The petitioners contend that they belong to the Scheduled Castes, Tribes and other minorities and are residing at the said place for more than 50 years by constructing houses and by raising shed.

The Tahsildar has issued notice dated 01/02/2020 to the petitioners and 195 other persons in the vicinity, directing them to remove the residential encroachment made over Gadipura Talabkatta Hingoli (Jaleshwar Talav Hingoli), Taluka and District Hingoli. The petitioners submit that they have been paying house taxes, water taxes towards the Municipal Council of Hingoli and are also paying electricity charges to the Maharashtra State Electricity Board. Petitioners submit that they are in peaceful enjoyment of the said property and by virtue of the said GR dated 04/04/2002, the petitioners are protected as they are residing over the said land prior to 1995 and even their names are included in the voters list of Hingoli Assembly Constituency. The petitioners further prayed that in terms of the GR dated 04/04/2002, respondents be directed to regularize their residential structures.

The petitioners are protected by an interim order of this Court dated 21/02/2020.

The respondents in their reply submit that the notice dated 01/02/2020 clearly stipulates that the encroachment has to be removed on account of Gadipura Talabkatta Hingoli (Jaleshwar Talav Hingoli) is a pond, which is a public place and the said pond needs development. Notice stipulates that there is encroachment on the pond area and that there was earlier notice issued on 28/02/2018, and in the inquiry that was initiated by the notice dated 28/02/2018, it has been found that the petitioners have encroached on the pond area and they are being directed to remove the structures, failing which the State would be compelled to do so and the expenses for the same would be recovered from the petitioners.

The Hon’ble Supreme Court has issued directions in Civil Appeal No.1132 of 2011 @ SLP © No.3109/2011 (Jagpal Singh & Ors. vs. State of Punjab & Ors.), dated 28th January, 2011, to evict illegal occupants from Gram Sabha/Gram Panchayat/ Poramboke/Shamlat land and the land has to be restored for the common use of villagers of the village. This Court in case of Writ Petition (PIL) No.1515 of 2008 and oth) Atmaram Dasrath Ukey and Ors. vs. The State of Maharashtra and Ors., decided on 26/02/2019, has directed Municipal Corporation to take vacant possession of land and develop it for the purpose for which it is preserved.

The learned GP relied upon the case in Atmaram Dasrath Ukey (Supra) in which the Nagpur Bench directed Municipal Corporation to take vacant possession of land and develop it for the purpose for which it is preserved.

The learned GP on behalf of the State submits that the petitioners are obstructing the water way and has encroached on a public ponds which needs to be developed and that the said GR is not applicable to the case of the present petitioners. The learned AGP relies on the Judgment in Jagpal Singh & Ors. vs. State of Punjab & Ors. (Supra) whereby following specific directions have issued by the Hon’ble Supreme Court that :-

“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 ofcers 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 justifcation 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 notifcation 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.”

In the case of Jagpal Singh (Supra), the Hon’ble Supreme Court at paragraph Nos.17 and 18 observed as under :-

In this connection we wish to say that our ancestors were not fools. They knew that in certain years there may be droughts or water shortages for some other reason, and water was also required for cattle to drink and bathe in etc. Hence they built a pond attached to every village, a tank attached to every temple, etc. These were their traditional rain water harvesting methods, which served them for thousands of years.

Over the last few decades, however, most of these ponds in our country have been flled with earth and built upon by greedy people, thus destroying their original character. This has contributed to the water shortages in the country.”

Considering the GR dated 04/04/2002 and above cited Judgments of Hon’ble Supreme Court and this Court, we direct the State that if the petitioners are found to be eligible for rehabilitation in terms of GR 17/11/2018 and 04/04/2002, then in terms of the policy of the State, the petitioners should be rehabilitated under the rehabilitation Scheme at any other places as may be stipulated in the Scheme. However, the State would be entitled to evict the petitioners immediately from the present area of occupation since the encroachment is made in a area for Pond and the pond is required for public use. The petitioners should be accommodated after such a scheme for rehabilitation is implemented by keeping the petitioners on wait list, if they are found eligible in terms of the scheme.

In view of above, the writ petition stands disposed off. Rule is discharged in above terms.