What is doctrine of settled expectation in respect of regularization of encroachment?

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 create 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.

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

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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.

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

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