Friday, 15 April 2016

Whether encroachment on public land can be regularised?

We are fortified in our above view on this subject by the

decision of Karnataka High Court in the case of Holeyappa & others
Vs. State of Karnataka represented by its Secretary & others
[ILR 2005 KARNATAKA 5437]. The observations made by the
Karnataka High Court in the said Judgment, the relevant portion of
which is quoted below, are apt in the present scenario:-
“.....................................................................................
...........No writ lies for issuing directions to the
Government or the officials of the Government to
compel them to act contrary to the statutory provisions.
Respondents are directed to ensure that if any standing
crop was there, it is harvested and the proceeds given
to such persons who had raised the crop and to ensure
that hence forth the land is retained as a gomal land,
that no unauthorised encroachments are allowed on the
land and land is preserved for the common utility of the
community of the village. It is hereby directed that the
respondents are bound to maintain the land as gomal
land. #Over a period of time, no doubt the number of
cattle might have got reduced but villagers still remain
agricultural based and farmers continue to depend on
cattle. Areas available for grazing of cattle, greenery,
have got reduced over all on account of vast extents of
lands becoming urbanised and rapid urbanization has
not spared villages either. Non agricultural activities
have proliferated and the demand for land has
increased day by day. Vast extents of land which has
been earmarked for such community purposes like
gomal land have become the prime target of the
greedy. Local politicians eye on it for their personal
gains, set up people to grab such lands; applications are
made by syndicates in benami and what not. Available
lands are grabbed by the powerful and greedy persons
and the like at the cost of community even when there
is absolute need for maintaining such lands as gomal
lands and to ensure that they sub-serve the common
interest of the community. Without any application of
mind or thought and at the behest of greedy political
bosses, bureaucrats threw to winds the relevant

statutory provisions, subvert the provisions and virtually
sell away Government lands in the guise of granting of
lands. To further compound the situation such persons
even seek aid of the Court praying for issue of
directions to the respondents to legitimise their illegal
activities and directions and mandamus are issued by
this Court. More often than not such directions come in
handy for conniving and fraud intent officials to put a
seal of legitimacy for their arbitrary and illegal actions.
…..”
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Application [APL] No. 516 of 2015
Bhaskar son of Bhagwant Dikkar,

Versus
State of Maharashtra,

 CORAM : A.B. CHAUDHARI AND
P.N. DESHMUKH, JJ.

 Date : 14th August, 2015.
Citation; 2016 ALLMR(CRI)1077

01. Rule. Rule is made returnable forthwith. Learned APP Mr.
Nayak waives service for respondent sole. Heard learned counsel for
the rival parties. By consent of rival parties, this Criminal Application is
taken up for final hearing and disposed of by this Judgment and Order.
02. Following is the prayer in Prayer Clause [I] of the application
for quashing FIR No. 57/2015 registered with Dahihanda Police Station,
Tq. Akot, Distt. Akola, for offence under Section 447 read with Section
34 of Indian Penal Code:-
“[I] Allow the instant application and thereby quash
the first information report vide FIR No. 57/2015
[Annex.5], registered with the respondent,
Police Station, Dahihanda, Tah. Akot, Distt.
Akola, for offence punishable under Section 447
& 34 of the Indian Penal Code.”
03. The crux of the matter and the larger question that arises
for consideration is whether Gayran lands can be cultivated and used
illegally and then regularized for any other purpose than for what it is
earmarked, namely for grazing?

04. The First Information Report dated 5th July, 2015 filed by the
Secretary, Gram Panchayat, Devri, Tq. Akot, Distt. Akola, and order
made by the Sub-Divisional Officer on 7th July, 2015 also show that the
applicants encroached on the Gayran land. The allegation in the FIR is
that green pastures, grass etc., grown on the Gayran land, in
question, were removed by the applicants, insecticide was sprayed
which was obviously dangerous for animals and a tractor was used for
ploughing the land in question. That is why the FIR under Section 447
of Indian Penal Code was registered.
05. Learned counsel for the applicants relied on the Govt.
Resolution dated 28th November, 1991 and submitted that the said
Resolution clearly provides for regularization of encroachments on
Gayran lands. He submitted that the applicants have been in
possession of these lands from the year 1989 and, therefore, the
applicants are entitled for regularization of those encroachments. On
the last date, learned counsel for the applicants was asked to find out
the view of the Apex Court in relation to Gayran lands, since the Govt.
Resolution of 1991 is deemed to have been superseded by the extant
policy.
06. Learned counsel for the applicants in fairness has produced

before us the Govt. Resolution dated 12th July, 2011. The counsel
submitted that para 7 of the said Govt. Resolution is what the Apex
Court held in the case of Jagpal Singh & others Vs. State of
Punjab & others [AIR 2011 SC 1123]. However, he submitted that
para 7 [4] of the said Govt. Resolution permitted such regularization of
encroachments. He also invited our attention to the order made by the
Bombay High Court on 28th March, 2014 in Public Interest Litigation
No. 204 of 2010 and submitted that with reference to earlier order
made by the same Court on 16th December, 2010, the Principal Seat
proceeded to dispose of the petition by directing regularization of the
Gayran lands.
07. We have heard learned counsel for the rival parties at
length.
08. It is true that the Govt. Resolution dated 28th November,
1991 did indicate regularization of encroachments on Gayran lands.
That was also referred in the Circular dated 23rd September, 1999, as
there is, again with reference to the Govt. Resolution dated 28th
November, 1991. It is also true that the Judgment and order dated
28th March, 2014 made in Public Interest Litigation No. 204 of 2010
referred to earlier order dated 16th December, 2010 and ultimately,

directions were issued for regularization. We, however, find that the
earlier order dated 16th December, 2010 in Public Interest Litigation
No. 204 of 2010 is obviously before the delivery of the Judgment of the
Supreme Court in the case of Jagpal Singh & others Vs. State of Punjab
& others [cited supra], based on which the Govt. issued the last
Resolution dated 12th July, 2011. It is, thus, clear to us that the said
order dated 28th March, 2014 does not refer to the Supreme Court
judgment aforesaid in Jagpal Singh's case, so also the Resolution of the
Govt., dated 12th July, 2011, a copy of which is taken on record and
marked 'X' for identification. We think the Supreme Court Judgment
and the Govt. Resolution based on that Judgment as aforesaid must be
held to be holding the field and any order in ignorance thereof would
not be valid. We are, therefore, bound by the Judgment of the Supreme
Court and the consequent Govt. Resolution dated 12th July, 2011. We,
therefore, do not subscribe to the submission made by the learned
counsel for the applicants that the order dated 28th March, 2014
should be followed. We then find that in the districts of Akola and
Buldana, large number of Gayran lands meant for grazing of animals
have been encroached and are now being sought to be regularized, as,
in the instant case, the application was made to the Collector to act for
making regularization on the basis of the old Govt. Resolution of 1991.
We think, in the light of the last Supreme Court Judgment in the case

of Jagpal Singh and the Govt. Resolution based thereon, the
regularization of such encroached Gayran lands cannot be allowed and
on the contrary the encroachments are liable to be removed, as
directed in the said Govt. Resolution.
09. One must realize the pitiable conditions of the animal
husbandry in respect of which the lands meant for grazing etc., have
also been encroached by human beings and the animal husbandry is
being deprived of their basic food only because of the unending greed
of human being. This is a pathetic state of affairs and we think that the
State Govt. at least now must wake up to follow the said Supreme
Court Judgment in letter and spirit and the Govt. Resolution issued by
the Govt. itself on 12th July, 2011, in particular Clause 9 (1) (2) thereof
by drawing out the programme as suggested by the Supreme Court for
driving out the human beings who have encroached on the lands
meant for grazing of the animals rather than the animals being driven
out by human beings. We are really taken aback that despite steep
decline in the animal husbandry in proportion to human population in
the country, the Govt., issued a Resolution dated 28th November, 1991
to regularize encroachments on Gayran lands.
10. We are fortified in our above view on this subject by the

decision of Karnataka High Court in the case of Holeyappa & others
Vs. State of Karnataka represented by its Secretary & others
[ILR 2005 KARNATAKA 5437]. The observations made by the
Karnataka High Court in the said Judgment, the relevant portion of
which is quoted below, are apt in the present scenario:-
“.....................................................................................
...........No writ lies for issuing directions to the
Government or the officials of the Government to
compel them to act contrary to the statutory provisions.
Respondents are directed to ensure that if any standing
crop was there, it is harvested and the proceeds given
to such persons who had raised the crop and to ensure
that hence forth the land is retained as a gomal land,
that no unauthorised encroachments are allowed on the
land and land is preserved for the common utility of the
community of the village. It is hereby directed that the
respondents are bound to maintain the land as gomal
land. #Over a period of time, no doubt the number of
cattle might have got reduced but villagers still remain
agricultural based and farmers continue to depend on
cattle. Areas available for grazing of cattle, greenery,
have got reduced over all on account of vast extents of
lands becoming urbanised and rapid urbanization has
not spared villages either. Non agricultural activities
have proliferated and the demand for land has
increased day by day. Vast extents of land which has
been earmarked for such community purposes like
gomal land have become the prime target of the
greedy. Local politicians eye on it for their personal
gains, set up people to grab such lands; applications are
made by syndicates in benami and what not. Available
lands are grabbed by the powerful and greedy persons
and the like at the cost of community even when there
is absolute need for maintaining such lands as gomal
lands and to ensure that they sub-serve the common
interest of the community. Without any application of
mind or thought and at the behest of greedy political
bosses, bureaucrats threw to winds the relevant

statutory provisions, subvert the provisions and virtually
sell away Government lands in the guise of granting of
lands. To further compound the situation such persons
even seek aid of the Court praying for issue of
directions to the respondents to legitimise their illegal
activities and directions and mandamus are issued by
this Court. More often than not such directions come in
handy for conniving and fraud intent officials to put a
seal of legitimacy for their arbitrary and illegal actions.
…..”
11. We then find that in so far as the offence registered against
the applicants is concerned, the facts disclosed in the FIR and the
order made by the Sub-Divisional Magistrate show that there is a
prima facie case against the applicants, as they had allegedly
ploughed the Gayran land, cleared the green grass meant for animal
grazing and not only that, they finally spread the insecticide over the
grass lands. The applicants themselves say that they have encroached
on the Gayran lands and, therefore, we have no doubt in our mind that
an offence under Section 447 read with Section 34 is clearly made out.
That being so, we make the following order:-
O R D E R
[a] Criminal Application No. 516 of 2015 is dismissed
summarily.

[b] State Govt. is directed to take note of the Govt.
Resolution No. जमीन ०३/२०११/प.क. ५३/ज-१ dated 12th
July, 2011 and the Supreme Court Judgment, on which
it is based, and to implement the Supreme Court
Judgment and the Resolution at the earliest.
[c] State Govt. shall direct all the Collectors in the State
not to regularize any encroachments on Gayran lands
and to recall, if any, made as per Clause 9 (1) (2) of
the said Govt. Resolution No. जमीन ०३/२०११/प.क. ५३/ज-१
dated 12th July, 2011, and to take possession of such
Gayran lands for grazing of animals.

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