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: Permittee Cannot Claim Of Government Land With
Government Land Cannot Be Fenced Off
The has firmly ruled that a person or entity permitted to use government land as a means of access cannot claim exclusive rights over it. In a significant decision delivered by Justice Arun R. Pedneker, the Court upheld the Collector's order directing the removal of gates installed by , which had been using a strip of government land for over 45 years. The Court emphasized that such land must remain open to the public and cannot be appropriated for private use.
The 45-Year-Old Access Dispute
The case revolved around a strip of government land measuring approximately 9.15 meters in width, which served as an access road for the housing society. In , the granted the society to use this land because its own plot was landlocked and a proposed 44-feet-wide Development Plan (DP) road had not yet been constructed. The permission was explicitly conditional: the society was required to discontinue using this access once the DP road was built. It also had to submit a registered undertaking to that effect.
Over the years, the society constructed a bitumen road on the strip and installed an iron gate at its entrance, effectively converting the public access into a private passage. The DP road was eventually completed, but the society refused to remove the gate or cease its . In , the BMC issued a notice to the society, calling for the removal of the gate and the cessation of unauthorized activities. Following this, the Collector passed an order on , directing the removal of the gate. The society challenged this order by filing a .
Society's Claims Rejected
The society argued that it had been in of the gate and the access strip for over 41 years and that no show-cause notice had been issued before the Collector's order. It claimed that the strip formed part of its original land grant from and that the Collector had acted arbitrarily and in violation of the . The society also pointed to a pending civil suit concerning the adjacent garden area, asserting that the gate was part of the subject matter of that suit and protected by an .
The state government, represented by the Collector, countered that the strip was government land over which only temporary access had been granted. It argued that the society had no right to erect a gate and block public use. The intervenor, , which is developing a slum rehabilitation scheme nearby, submitted that the access road was the only means of entry for the densely populated slum and that the society's gate was causing obstruction.
Why the Gate Had to Go
The Court closely examined the original communications between the BMC and the society, particularly the letters from and . These documents clearly stated that the access was temporary and would be discontinued once the DP road was constructed. The Court noted that the DP road was now operational and being used by the society. It found that the society's claim of ownership over the access strip was unsupported by evidence and that the strip did not form part of the allotment.
Justice Pedneker distinguished the precedent cited by the society— —observing that in that case, the land had been specifically allotted to the occupants. In the present case, there was no grant of government land; only a permission to use the access. The Court held that by erecting a gate, the society was excluding others from using the land and converting a public access into a personal space.
Access for All: The Court's Directive
The Court made pivotal observations that underscore the principle that government land with cannot be taken over for . It stated:
"The Government land with cannot be taken in for the exclusive utilisation of the Petitioner… The Petitioner has no right to put up a gate on an access road. The land belongs to the Government and connects to the D.P. road."
Further, the Court clarified that the removal of the gate did not stop the society's access:
"By removing the gate, the Collector has not stopped the access of the Petitioner, and the Petitioner continues to be entitled to use the said access."
The Court also rejected the society's argument that the Collector should have followed the procedure under before ordering the gate removal. It held that the Collector's action was merely to remove an unauthorized obstruction and did not amount to an eviction from the land.
Final Decision
The Court partly allowed the , upholding the Collector's order for gate removal but issuing a crucial rider: the state government cannot grant of the access road to any other party. The access must remain open to the society as well as to all others who need to use it. The Court directed that the access road shall continue to serve its purpose as a , connecting the DP road on one side and the public road on the other. The rule was made absolute, and the petition was disposed of in these terms.
This ruling reinforces the principle that government land held for public use cannot be monopolized by any private entity, even if it has been using the land for decades under a .
