It would be clear from the above provisions
of law that except for public purpose, the Gairan land
cannot be diverted or granted or leased out for any
other use. In the present case, the petitioner is seeking
allotment of the land on lease to him for private
purpose, which is not permissible under above referred
provisions of law. {Para 6}
7. In present case, admittedly, the
petitioner is not there on the land by virtue of some
Government Notification in his favour. Admittedly, the
petitioner is seeking regularization of his encroachment
for only private purpose. Therefore, as per the law laid
down by the Hon’ble Supreme Court of India, the
petitioner is not entitled for regularization of his
encroachment by allotting the land on lease to him.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CIVIL WRIT PETITION NO.2581 OF 2021
Ramdas s/o. Sambhaji Ghewande Vs. State of Maharashtra, through its Secretary,
CORAM : SUNIL B. SHUKRE AND
ANIL S. KILOR, JJ .
DATE : 26th JULY, 2021.
Heard Mr. Awachar, learned counsel for the
petitioner and Mr. Patil, learned AGP, who appears by
waiving notice on behalf of the respondent Nos.1, 3 and
4.
2. The petitioner is admittedly an encroacher
upon government “E” Class land, which is Gairan land.
It is the contention of Mr. Awachar, learned counsel for
the petitioner that the petitioner is a land less person,
who has encroached upon this land since the year 1991
and therefore, the petitioner is entitled for allotment of
the land encroached by him through its regularization.
He also submits that there is a Gram Panchayat
Resolution dated 30.06.1998, which gives no objection
for permanent allotment of government land to the
petitioner. It is also the case of the petitioner that the
petitioner is eligible for regularization of his
encroachment, as his case falls in the exceptional
categories carved out in the case of Jagpal Singh and
others Vs. State of Panjab and others , (2011) 11 SCC
396.
3. Mr. Patil, learned AGP for respondent Nos.1,
3 and 4 submits that under Section 22A of the
Maharashtra Land Revenue Code, 1966 (for short "the
Code of 1966"), no regularization for any private
purpose is permissible, as it could amount to diversion
of the Gairan land against the express provisions of law.
He also submits that even by the criteria laid down in
the case of Jagpal Singh (supra), the petitioner is not
entitled for any kind of regularization.
4. So far as Gram Panchayat resolution is
concerned, we must say that there was no business for
the Gram Panchayat to have passed a resolution, giving
its no objection for regularization of the encroachment
upon the government land, especially in view of the
provisions made under sub-Section (6) of Section 22A
of the Code of 1966. These provisions indicate that
powers of diversion, grant, lease of Gairan land under
Section 22A of the Code of 1966 shall be vested in the
State Government. Therefore, passing of any unwarrented
resolution in respect of the land, of which
Gram Panchayat is not the owner or the land which is
not vested in the Gram Panchayat, only amounts to
meddling with the affairs of the State Government, for
which purpose, appropriate action, if thought it
necessary, would have to be taken by the State
Government.
5. Section 22A of the Code of 1966 provides for
diversion of the Gairan land only in a limited manner.
Such diversion or grant has been provided for under
sub-sections (2) and (3) of Section 22A of the Code of
1966. Sub-section (1) of Section 22A of the Code of
1966 lays down that any land which is set apart as a
Gairan land shall not be diverted or granted or leased
for any other purpose, except in the circumstances,
provided in sub-sections (2) and (3). For the sake of
convenience, sub-sections (1), (2) and (3) of Section
22A are reproduced as under:
"[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 subsections
(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
provided in sub-sections (4) and (5)."
6. It would be clear from the above provisions
of law that except for public purpose, the Gairan land
cannot be diverted or granted or leased out for any
other use. In the present case, the petitioner is seeking
allotment of the land on lease to him for private
purpose, which is not permissible under above referred
provisions of law.
7. Even in the case of Jagpal Singh (Surpa), the
Hon’ble Apex Court has allowed regularization only in
exceptional cases, and these cases have been listed as
the cases where lease had 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
utility on the land. In present case, admittedly, the
petitioner is not there on the land by virtue of some
Government Notification in his favour. Admittedly, the
petitioner is seeking regularization of his encroachment
for only private purpose. Therefore, as per the law laid
down by the Hon’ble Supreme Court of India, the
petitioner is not entitled for regularization of his
encroachment by allotting the land on lease to him.
8. In the result, we find no merit in the petition,
the petition stand summarily dismissed. No costs.
9. The learned counsel for the petitioner
submits that crops of Soyabean and Toor are standing
on the encroached land and therefore, some protection
should be given to the petitioner to enable him to save
the harvest of these crops.
10. There is nothing on record which establishes
as a fact that these crops are standing on the land in
question. Besides, notice has been received by the
petitioner in May 2021 and therefore, if the contention
of the petitioner is correct, petitioner ought to have
taken necessary steps by now regarding removal of the
crops, which apparently the petitioner has not done so.
11. The prayer made by the learned counsel for
the petitioner is, therefore, rejected. However, the
petitioner may approach the Tahsildar for grant of time
of one week or two weeks at the most for restoring the
land to its original position, if any.
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