important point
An encroacher cannot seek regularisation of encroachment in the garb of Article 21A.

judgment

Dr. ARIJIT PASAYAT, J. —

1.Leave granted.

2.Challenge in this appeal is to the order passed by a Division Bench of the Bombay High Court at Aurangabad directing appellant-City and Industrial Development Corporation of Maharashtra (in short the ‘CIDCO’) to consider respondent No.1’s case for regularization of the existing plot admeasuring 770 Sq. mtrs., located at N-7 Sector and on regularization to accept the consideration at the rates prevailing in 1981 for the plots reserved for educational facilities. It was held that CIDCO’s stand that the said plot is a green belt cannot be accepted.

3.Factual background in nutshell is as follows :

“A writ petition was filed by the respondent No. 1 for a direction to the appellants to regularize a plot of land which was claimed to be under its possession. In the writ petition it was stated that a group of house wives interested in social service particularly for creating opportunities for children from lower income groups formed a society called “Ektha Mahila Mandal” in the N-7 Sector of CIDCO. Subsequently, it was registered under the Bombay Public Trust Act, 1950 (in short the ‘Trust Act’) as a charitable trust and they started a Balakwadi for the children coming from the lowest income groups. Adjacent to the balakwadi of respondent no.1, there was an open plot and the respondent no.1 constructed two rooms along with one toilet block and the remaining land was used as a playground for the students. Prayer in the writ petition as noted above was for a direction to allot the same plot in favour of respondent no.1 for educational purposes. Appellants filed its reply and submitted that the plot admeasuring 770 Sq. mtrs. located in N-7 Sector and on the portion of which the constructions have been made is reserved as a green belt and it cannot be allotted to the writ petitioner. It was pointed out that another plot in N-7 Sector-1 was available which admeasures about 2186 Sq. mtrs. and was reserved for primary school and the writ petitioner was informed about these factors. However, before CIDCO proceeded to invite application for allotment of this plot, a section of the society resorted to agitations, demonstrations, hunger strike and demanded that the portion of the plot was reserved for Budha Vihar, it could not be allotted to any one else. Under these circumstances, CIDCO could not proceed further to consider the application for alternative plot.

4.Stand of the writ petitioner was that though in records the plot in question was stated to be reserved for green belt, in reality only a few trees existed. It was, therefore, stated that the High Court should direct allotment of the plot to the writ petitioner. The High Court appointed a Court Commissioner to visit the land and submit a report. According to the report, the area fenced by the writ petitioner measured 770 Sq. Mtrs. The High Court felt that it was not sufficient to treat it as a green belt. In the two rooms constructed, students were being taught in shift basis and the atmosphere was very clumsy and unhygienic. The sections were being run at three different places. One section of the school was running in House No.68, Sector G-7 in N-7 and the third section was being run in the nearby hall called “Comrade Deshpande Social Facility Hall”. The High Court felt that after insertion of Article 21A of the Constitution of India, 1950 (in short the ‘Constitution’), primary education to the children is a matter of fundamental right. Since the writ petitioner was running a school, it is necessary that CIDCO should regularize the entrusted plot. Writ petitioner stated that it needed to construct about 8 to 12 class rooms, a toilet block separately for the male and female children, Office for the Head Mistress, staff room, a laboratory and Library and it proposes to build up a multi-storeyed structure so that the major portion of the land would remain open for plantation of trees on the boundary and for being used as playground. Therefo