Monday, 12 December 2016

Whether application for regularisation of encroachment can be decided as per provisions applicable on date of their disposal?

I have given due consideration to the respective submissions and
I have gone through the documents filed on record.   As per Government
Resolution   dated   28.11.1991   a   policy   decision   was   taken   by   the   State
Government   to   regularise   encroachments   made   between   01.04.1978   and
14.04.1990.   The manner in which such encroachments could be regularised
was stipulated therein.  In Jagpal Singh (supra) the Hon'ble Supreme Court
noticed   that   various   lands   that   vested   in   the   grampanchayats   had   been

encroached.   It was noticed that various State Governments had permitted
allotment of such lands to private persons and commercial enterprises on
payment of some money.  It was observed that such Government orders were
illegal.  In that background directions were issued to all State Governments to
prepare schemes for eviction of illegal/unauthorised occupants of such land.
It was observed that such schemes should provide for speedy eviction of
illegal occupants after giving show cause notice and brief hearing. 
Pursuant to this judgment, the State Government brought into
effect  Government  Resolution  dated  12.07.2011.    The  same   was  for   the
purpose of removal of encroachments on E­class lands.  A policy decision was
taken that in future   such lands should be utilised only for implementing
public   utility   services   and   for   implementing   the   policies   of   the   Central
Government and the State Government.  It was also resolved not to allot such
lands to any individual or any private institution.   
7] In R. V. Bhuskute (supra) the Division Bench of this Court while
entertaining   a   public   interest   litigation   in   the   matter   of   removal   of
encroachments issued directions to the State Government to publish a list of
persons who were entitled to take   benefit of Clause 10 of Government
Resolution dated 28.11.1991.  This order passed by the Division Bench was
considered subsequently by another Division Bench in  Bhaskar Bhagwant
Dikkar (supra).   It was observed that the order passed in  R. V. Bhuskute
(supra)  did not  refer  to  the  judgment  of the  Hon'ble  Supreme  Court  in
Jagpal   Singh (supra)  as   well   as   the   Government   Resolution   dated

12.07.2011.   The Division Bench thereafter proceeded to direct the State
Government to implement the judgment of the Hon'ble Supreme Court in
Jagpal   Singh (supra)   as   well   as   the   Government   Resolution   dated
12.07.2011.  A further direction was issued to all Collectors in the State to
recall any order of regularising any encroachment if made under Clause 9(1)
and 9(2) of Government Resolution dated 12.07.2011 and to take possession
of such lands for grazing purpose. 
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
28­11­1991. This would have to be considered in the light of the fact that
when the applications for regularisation were pending, another Government
Resolution dated 12­7­2011 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 663.  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 rule­making 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 fulfilment 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 so­called “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 28­11­1991 and not any
vested right.
9. It is also equally well settled that consideration of an application
of the present nature would depend upon the provisions as are applicable on
the date of disposal of the application.   In case of a change in policy, the
application would be liable to be dealt with in the manner and procedure that
is prevailing on the date when such application is considered and decided.
Reference in this regard can be usefully made to the following observations of
the Hon'ble Supreme Court in :
[A] State of Tamil Nadu  Vs.  M/s Hind Stone and others (1981) 2
Supreme Court Cases 205: 
“While it is true that such applications should be dealt
with   within   a   reasonable   time,   it   cannot   on   that
account be said that the right to have an application
disposed of in a reasonable time clothes an applicant
for   a   lease   with   a   right   to   have   the   application
disposed of on the basis of the rules in force at the
time of the making of the application.  No one has a
vested right to the grant or renewal of a lease dealt
with   in   a   particular   way,   by   applying   particular
provisions.     In   the   absence   of   any   vested   rights   in
anyone, an application for a lease has necessarily to be
dealt with according to the rules in force on the date of
the disposal of the application despite the fact that
there   is   a   long   delay   since   the   making   of   the
application.” 
[B] P. T. R. Exports (Madras) Pvt. Ltd. and others Vs. Union of India

and others (1996) 5 Supreme Court Cases 268:
“Grant of licence depends upon the policy prevailing
as on the date of the grant of the licence.  The court,
therefore,   would   not   bind   the   Government   with   a
policy which was existing on the date of application as
per previous policy.  A prior decision would not bind
the   Government  for   all   times   to  come.    When   the
Government is satisfied that change in the policy was
necessary in the public interest, it would be entitled to
revise the policy and lay down new policy.”
[C]          Madras City Wine Merchants' Association and another  Vs.  State of
T. N. and another (1994) 5 Supreme Court Cases 509:
“Legitimate expectation may arise­
(a) if there is an express promise given by a public
authority; or 
(b)   because   of   the   existence   of   a   regular   practice
which the claimant can reasonably expect to continue;
(c) Such   an   expectation   must   be   reasonable.
However, if there is a change in policy or in public
interest the position is altered by a rule or legislation,
no question of legitimate expectation would arise.”
                                                    (emphasis supplied)
10] In the light of aforesaid legal position, it is crystal clear that the
petitioners have no legal right whatsoever to insist for consideration of their
applications for regularization on the basis of Government Resolution dated
28­11­1991. Though it is a fact that the applications moved by the petitioners
were pursuant to the said Government Resolution, these applications were
pending when the State Government came up with a fresh policy by issuing
Government Resolution dated 12­7­2011. The mere fact that the petitioners
had applied for regularization in terms of the earlier policy and the said
applications were pending when the new policy came into force cannot be a
ground to hold that the said applications ought to have been considered as

per the earlier policy. The said applications, therefore, have been rightly
decided in the light of Government  resolution dated 12­7­2011 which is
holding the field. 
11] Once   it   is   found   that   the   petitioners   had   applied   for
regularization on the basis of Government Resolution dated 28­11­1991 and
the Collector rightly considered these applications in the light of subsequent
Government Resolution dated 12­7­2011, the aspect of absence of grant of
any hearing before passing the impugned order pales into insignificance.  The
impugned order merely states that in the light of the directions issued by the
Division   Bench   in  Bhaskar   Bhagwant   Dikkar   (supra)  and   Government
resolution   dated   12­7­2011,   the   applications   were   being   rejected.   The
petitioners   had   no   vested   right   whatsoever   to   have   their   applications
considered in the light of Government resolution dated 28­11­1991. The
policy in question having undergone a change, insistence for grant of hearing
in these circumstances would be nothing but an empty formality. The claim
for regularisation under Government Resolution dated 28­11­1991 now not
being   possible   in   view   of   the   subsequent   Government   Resolution   dated
12­7­2011, no useful purpose would be served by directing grant of hearing
to the petitioners. There could not be any other conclusion than one arrived
at in the impugned orders. The observations of the Hon'ble Supreme Court in
Dharampal Satyapal Ltd. (supra) support aforesaid conclusion.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
NAGPUR.
WRIT   PETITION    NO.   6466     OF     2015
Bhagwan Kisan Wagh

V
State of Maharashtra,

CORAM: A.S. CHANDURKAR, J.

 DATED : 21­-07­-2016.
Citation: 2016 (5) ALLMR847

Since common issues arise in all these writ petitions they have
been heard together and are being decided by this common judgment.  
2] Rule.  Rule in each writ petition is made returnable forthwith and
the learned counsel for the parties have been heard at length.  For the sake of
convenience the facts in Writ Petition No. 6466 of 2015 are being referred to.
3] The petitioner claims to be in possession of E Class land­Gairan
land since the year 1990.  According to the petitioner, the respondent no.1
has   issued   Government   Resolution   dated   28.11.1991   in   the   matter   of
regularisation   of   encroachments   of  such  lands.    In   the   said   Government
Resolution a policy decision has been taken to regularise encroachments
made between 01.04.1978 and 14.04.1990.   According to the petitioner in
terms of aforesaid Government Resolution steps were taken by the revenue
authorities for regularising the encroachments.   No objection was obtained
from   the   Grampanchayat   and   recommendation   for   regularising   the
encroachment   committed   by   the   petitioner   was   submitted   by   the   Sub
Divisional   Officer   to   the   Additional   Collector.     Thereafter   a   demand   of

penalty   towards   regularising   the   encroachment   was   also   made   from   the
petitioner.     However   by   order   dated   09.10.2015   the   Collector   Buldhana
rejected the application for regularising the encroachment committed by the
petitioner.     Being   aggrieved   by   the   aforesaid   order   the   petitioner   has
challenged the same before this Court.  
4] Shri P. S. Khubalkar and Shri R. N. Ghuge, the learned counsel
for the petitioners submitted that Collector was not justified in rejecting the
application for regularising the encroachment in question.  According to them
by virtue of Government Resolution dated 28.11.1991 the State Government
had   taken   a   policy   decision   to   regularise   encroachments   made   between
01.04.1978   and   14.04.1990.     As   the   petitioners   were   covered   by   this
Government Resolution, there was a vested right in the petitioners to have
their encroachment regularised. The applications moved by the petitioners
were   required   to   be   dealt   with   as   per   Government   Resolution   dated
28­11­1991.  It was submitted that the Collector was not legally justified in
relying   upon   a   subsequent   Government   Resolution   dated   12.07.2011   for
refusing to regularise the encroachment.   It was submitted that the earlier
Government Resolution dated 28.11.1991 had not been superseded and the
said   Government   Resolution   continued   to   operate.   Relying   upon   the
judgment of the Hon'ble Supreme Court in Jagpal Singh and others  Vs.  State
of Punjab and others (2011) 11 Supreme Court Cases 396, it was submitted
that while issuing directions to the State Government for preparing schemes
for   eviction   of   unauthorised   occupants,   the   provision   of   issuing   a

show cause notice and brief hearing had been stipulated.  In the present case
without grant of any opportunity of hearing and merely by relying upon the
Government   Resolution   dated   12.07.2011   the   impugned   order   had   been
passed.  Reference was also made to the order dated 28.03.2014 passed at
the Principal seat in Public Interest Litigation No. 204 of 2010 (R.V. Bhuskute
& Anr. Vs. State of Maharashtra & Anr.) wherein it was observed that steps
should be taken as per Government Resolution dated 28.11.1991.   It was
therefore submitted that the impugned order passed without grant of any
opportunity of hearing to the petitioners was bad in law.  
5] Ms.   T.   Khan,   learned   Assistant   Government   Pleader   for   the
respondents   on   the   other   hand   supported   the   impugned   order.     She
submitted that after considering the law laid down by the Hon'ble Supreme
Court in Jagpal Singh (supra) the State Government had issued Government
Resolution dated 12.07.2011.  It was submitted that in the said Government
Resolution there was no provision made for grant of any hearing to the illegal
occupants before their eviction.  She placed heavy reliance on the judgment
dated   14.08.2015   in  Criminal   Application   No.   516   of   2015   (Bhaskar
Bhagwant Dikkar and others  Vs.  State of Maharashtra) wherein a Division
Bench of this Court had issued directions to the State Government to take
into consideration the judgment of the Hon'ble Supreme Court in  Jagpal
Singh (supra) and  implement Government Resolution dated 12.07.2011 by
taking possession of Gairan lands.   It was then submitted that the earlier
Government Resolution dated 28.11.1991 stood superseded in view of the

subsequent Government Resolution dated 12.07.2011.  As there was no legal
right in the petitioners to have the encroachment regularised and as there
was   no   stipulation   in   the   said   Government   Resolution   of   granting   an
opportunity of hearing, such opportunity could not have been claimed by the
petitioners.  In any event it was submitted that grant of any hearing to the
petitioners   was   nothing   but   an   empty   formality   in   view   of   Government
Resolution dated 12.7.2011.   The learned counsel placed reliance on the
judgment of the  Hon'ble Supreme Court in Dharampal Satyapal Ltd. Vs. Dy.
Commissioner of Central Excise Gauhati and others 2015(8) Supreme Court
Cases 519 in that regard. As the petitioners were admittedly encroachers on
Gairan land, they were liable to be evicted in view of Government Resolution
dated 12.07.2011 which was a policy decision based on the judgment of the
Hon'ble Supreme Court in Jagpal Singh (supra).    It was therefore submitted
that no useful purpose would be served even if a direction is issued to the
Authorities to hear the petitioners in the matter.  It was thus urged that the
writ petitions were liable to be dismissed.            
6] I have given due consideration to the respective submissions and
I have gone through the documents filed on record.   As per Government
Resolution   dated   28.11.1991   a   policy   decision   was   taken   by   the   State
Government   to   regularise   encroachments   made   between   01.04.1978   and
14.04.1990.   The manner in which such encroachments could be regularised
was stipulated therein.  In Jagpal Singh (supra) the Hon'ble Supreme Court
noticed   that   various   lands   that   vested   in   the   grampanchayats   had   been

encroached.   It was noticed that various State Governments had permitted
allotment of such lands to private persons and commercial enterprises on
payment of some money.  It was observed that such Government orders were
illegal.  In that background directions were issued to all State Governments to
prepare schemes for eviction of illegal/unauthorised occupants of such land.
It was observed that such schemes should provide for speedy eviction of
illegal occupants after giving show cause notice and brief hearing. 
Pursuant to this judgment, the State Government brought into
effect  Government  Resolution  dated  12.07.2011.    The  same   was  for   the
purpose of removal of encroachments on E­class lands.  A policy decision was
taken that in future   such lands should be utilised only for implementing
public   utility   services   and   for   implementing   the   policies   of   the   Central
Government and the State Government.  It was also resolved not to allot such
lands to any individual or any private institution.   
7] In R. V. Bhuskute (supra) the Division Bench of this Court while
entertaining   a   public   interest   litigation   in   the   matter   of   removal   of
encroachments issued directions to the State Government to publish a list of
persons who were entitled to take   benefit of Clause 10 of Government
Resolution dated 28.11.1991.  This order passed by the Division Bench was
considered subsequently by another Division Bench in  Bhaskar Bhagwant
Dikkar (supra).   It was observed that the order passed in  R. V. Bhuskute
(supra)  did not  refer  to  the  judgment  of the  Hon'ble  Supreme  Court  in
Jagpal   Singh (supra)  as   well   as   the   Government   Resolution   dated

12.07.2011.   The Division Bench thereafter proceeded to direct the State
Government to implement the judgment of the Hon'ble Supreme Court in
Jagpal   Singh (supra)   as   well   as   the   Government   Resolution   dated
12.07.2011.  A further direction was issued to all Collectors in the State to
recall any order of regularising any encroachment if made under Clause 9(1)
and 9(2) of Government Resolution dated 12.07.2011 and to take possession
of such lands for grazing purpose. 
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
28­11­1991. This would have to be considered in the light of the fact that
when the applications for regularisation were pending, another Government
Resolution dated 12­7­2011 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 663.  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 rule­making 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 fulfilment 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 so­called “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 28­11­1991 and not any
vested right.
9. It is also equally well settled that consideration of an application
of the present nature would depend upon the provisions as are applicable on
the date of disposal of the application.   In case of a change in policy, the
application would be liable to be dealt with in the manner and procedure that
is prevailing on the date when such application is considered and decided.
Reference in this regard can be usefully made to the following observations of
the Hon'ble Supreme Court in :
[A] State of Tamil Nadu  Vs.  M/s Hind Stone and others (1981) 2
Supreme Court Cases 205: 
“While it is true that such applications should be dealt
with   within   a   reasonable   time,   it   cannot   on   that
account be said that the right to have an application
disposed of in a reasonable time clothes an applicant
for   a   lease   with   a   right   to   have   the   application
disposed of on the basis of the rules in force at the
time of the making of the application.  No one has a
vested right to the grant or renewal of a lease dealt
with   in   a   particular   way,   by   applying   particular
provisions.     In   the   absence   of   any   vested   rights   in
anyone, an application for a lease has necessarily to be
dealt with according to the rules in force on the date of
the disposal of the application despite the fact that
there   is   a   long   delay   since   the   making   of   the
application.” 
[B] P. T. R. Exports (Madras) Pvt. Ltd. and others Vs. Union of India

and others (1996) 5 Supreme Court Cases 268:
“Grant of licence depends upon the policy prevailing
as on the date of the grant of the licence.  The court,
therefore,   would   not   bind   the   Government   with   a
policy which was existing on the date of application as
per previous policy.  A prior decision would not bind
the   Government  for   all   times   to  come.    When   the
Government is satisfied that change in the policy was
necessary in the public interest, it would be entitled to
revise the policy and lay down new policy.”
[C]          Madras City Wine Merchants' Association and another  Vs.  State of
T. N. and another (1994) 5 Supreme Court Cases 509:
“Legitimate expectation may arise­
(a) if there is an express promise given by a public
authority; or 
(b)   because   of   the   existence   of   a   regular   practice
which the claimant can reasonably expect to continue;
(c) Such   an   expectation   must   be   reasonable.
However, if there is a change in policy or in public
interest the position is altered by a rule or legislation,
no question of legitimate expectation would arise.”
                                                    (emphasis supplied)
10] In the light of aforesaid legal position, it is crystal clear that the
petitioners have no legal right whatsoever to insist for consideration of their
applications for regularization on the basis of Government Resolution dated
28­11­1991. Though it is a fact that the applications moved by the petitioners
were pursuant to the said Government Resolution, these applications were
pending when the State Government came up with a fresh policy by issuing
Government Resolution dated 12­7­2011. The mere fact that the petitioners
had applied for regularization in terms of the earlier policy and the said
applications were pending when the new policy came into force cannot be a
ground to hold that the said applications ought to have been considered as

per the earlier policy. The said applications, therefore, have been rightly
decided in the light of Government  resolution dated 12­7­2011 which is
holding the field. 
11] Once   it   is   found   that   the   petitioners   had   applied   for
regularization on the basis of Government Resolution dated 28­11­1991 and
the Collector rightly considered these applications in the light of subsequent
Government Resolution dated 12­7­2011, the aspect of absence of grant of
any hearing before passing the impugned order pales into insignificance.  The
impugned order merely states that in the light of the directions issued by the
Division   Bench   in  Bhaskar   Bhagwant   Dikkar   (supra)  and   Government
resolution   dated   12­7­2011,   the   applications   were   being   rejected.   The
petitioners   had   no   vested   right   whatsoever   to   have   their   applications
considered in the light of Government resolution dated 28­11­1991. The
policy in question having undergone a change, insistence for grant of hearing
in these circumstances would be nothing but an empty formality. The claim
for regularisation under Government Resolution dated 28­11­1991 now not
being   possible   in   view   of   the   subsequent   Government   Resolution   dated
12­7­2011, no useful purpose would be served by directing grant of hearing
to the petitioners. There could not be any other conclusion than one arrived
at in the impugned orders. The observations of the Hon'ble Supreme Court in
Dharampal Satyapal Ltd. (supra) support aforesaid conclusion.
12] In view of aforesaid discussion, it will have to be held that the
impugned orders do not suffer from any legal infirmity whatsoever.   The

petitioners had claimed entitlement as per an earlier policy which pending
consideration of the applications underwent a change.   Under the policy
which was in force when the applications were decided, there was no right
whatsoever for the encroachment being regularized. There is no case made
out to interfere in writ jurisdiction.   The writ petitions stand dismissed by
discharging the Rule and leaving the parties to bear their own costs.
JUDGE

Print Page

No comments:

Post a Comment