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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
R.K. DESHPANDE, VINAY JOSHI, JJ.
Atmaram Dasrath Ukey - Appellant
Versus
State of Maharashtra - Respondent
Writ Petition (PIL) No. 1515 of 2008; Contempt Petition No. 168 of 2014; Writ Petition No. 123 of 2019
Decided On : 26-02-2019
The petition was filed in public interest to command the respondents to immediately remove the encroachments made on the lands reserved for public utility, garden, dispensary and educational purposes from the Bezanbag area in the Nagpur Municipal Corporation. The petition further prays to command the respondents to take care that the encroachments do not occur again after their removal.
Fact of the Case:
The land admeasuring 80.09 acres, situated at Mouza Jaripatka, Indora and Hansapuri was initially owned by the Empress Mills. However, by the Government Resolution dated 24-6-1977, the Revenue and Forest Department of the State Government decided to take over the land from the Empress Mills and allot it to the Bezanbagh Pragatisheel Kamgar Gruh Nirman Sanstha Maryadit [Called as "the Society"] in consultation with the Empress Mills. This Society claims to be an association of past workers of the Empress Mills or their legal heirs. It prepared a layout plan on 24-6-1978, which was approved by the City Engineer of Nagpur Municipal Corporation on 22-6-1979.
Finding of the Court:
The decision of the Cabinet taken on 3-9-2014 is to allot 27,164.14 square meters of the Government land to the Society on the nominal rent in order to make out the deficit or shortfall of open space, place for public utility and public roads caused due to encroachment of land located at Mouza Hansapuri, Jaripatka and Indora. The total area of the land allotted to the Society stands increased from 3,20,962.21 square meters to 3,48,126.34 square meters. The essential conditions contained in this decision are as under: (1) The area of 15% shall be reserved as open space (open place, playground, garden, etc.) and 5% for public utility in the revised layout of 3,48,126.34 square meters of land, which shall be handed over free of cost to the Nagpur Municipal Corporation. (2) The encroachments by construction for commercial purposes in the layout as well as for the purposes of residence by the persons other than the original Mill workers or their legal representatives will have to be demolished. (3) The steps will have to be taken, as required by Section 37 of the Maharashtra Regional and Town Planning Act to - (a) delete the reservation already existing in the land admeasuring 54,437.19 square meters for public utility (school, hospital, Sanskrutik Bhavan, Buddha Vihar, etc.), open spaces (playground and garden), and public roads, as is stated in Paragraph 'l' of the affidavit dated 11-7-2018 filed by the Divisional Commissioner in Contempt Petition No.168 of 2014, and (b) delete the reservation for residential purposes in respect of the land admeasuring 27,164.14 square meters proposed to be allotted to the Society.
Issues: (1) Whether there can be regularization of encroachments on the land admeasuring 54,437.19 square meters meant for public utility, open spaces and public roads in the layout of the Society ? (2) Whether the decision taken by the Cabinet in its meeting held on 3-9-2014 can be considered as the decision to regularize the encroachments on the lands reserved for public utility, open spaces and public roads in the layout of the Society? (3) Whether the mandamus is required to be issued to direct removal of encroachments made on the entire land of 54,437.19 square meters reserved in the layout for public utility, open spaces and public roads?
Ratio Decidendi: The decision of allotment of land by the Cabinet is in contravention of the mandatory provisions of Rules 26 and 35 of the Rules without conducting auction and recovering price of Rs. 52,50,88,000/-, which is already determined. It is contrary to the decision of this Court in the case of Bhupal v. Collector, reported in, (1997) 2 MhLJ 651. This decision is on Section 40 of the Maharashtra Land Revenue Code and it lays down that grant of land without auction is arbitrary. In view of this decision, we cannot put our seal on such allotment of land.
Final Decision: Writ Petition (PIL) No.1515 of 2008 is allowed as under : (a) The respondents are directed to demolish the encroachments with structures standing on the land admeasuring 54,437.19 square meters, as is shown in Paragraph 8.2 of this decision, except Plot No.27, which is found to be in the sanctioned layout, and the plot of 280 square meters occupied by Buddha Vihar, which is one of the reservations in the layout in question. (b) We direct the Nagpur Municipal Corporation to take vacant possession of the land admeasuring 54,437.19 square meters, as above, and to develop it for the purpose for which it is reserved in the layout sanctioned on 22-6-1979. (c) We further direct the respondents- State Government and the local authority/Planning Authority - Nagpur Municipal Corporation to see that the steps are taken to prevent repeated encroachments on the land in question. (d) The entire exercise be carried out within a period of eight weeks from today.
R.K. DESHPANDE, J.
1. This petition is filed in public interest to command the respondents to immediately remove the encroachments made on the lands reserved for public utility, garden, dispensary and educational purposes from the Bezanbag area in the Nagpur Municipal Corporation. It further prays to command the respondents to take care that the encroachments do not occur again after their removal. The petition has been filed by five persons, amongst which the petitioner No.1 claims to be the social worker, however his name is deleted as per the order passed by this Court on 6-5-2014.
2. By an administrative order dated 1-4-2008 passed by the then Senior Administrative Judge at the Nagpur Bench of the Bombay High Court, the petition was directed to be treated as Public Interest Litigation, as it highlights the apathy and inaction on the part of the respondents to remove the encroachments on the public utility land and espouse the cause of the Bezanbag residents. Notice was issued on 3-4-2008 to the respondents.
3. The respondent No.1 is the Urban Development Department, whereas the respondent No.2 is the Revenue Department of the State Government, the respondent No.3 is the Commissioner, Nagpur Municipal Corporation, the respondent No.4 is the District Collector, the respondent No.5 is the Commissioner of Police, the respondent No.6 is the Bezanbag Sangharsh Samiti, and the intervenor is the Bezanbag Pragatisheel Kamgar Gruh Nirman Sahakari Sanstha Maryadit. About 29 persons have filed an application for intervention, which has been allowed by this Court on 2-11-2012.
4. The land admeasuring 80.09 acres, situated at Mouza Jaripatka, Indora and Hansapuri was initially owned by the Empress Mills. However, by the Government Resolution dated 24-6-1977, the Revenue and Forest Department of the State Government decided to take over the land from the Empress Mills and allot it to the Bezanbagh Pragatisheel Kamgar Gruh Nirman Sanstha Maryadit [Called as "the Society"] in consultation with the Empress Mills. This Society claims to be an association of past workers of the Empress Mills or their legal heirs. It prepared a layout plan on 24-6-1978, which was approved by the City Engineer of Nagpur Municipal Corporation on 22-6-1979.
5. There was an agreement executed on 23-7-1979 between the said Society and the Nagpur Municipal Corporation for development of land by providing roads, surface water drains, internal water supply- main and distributing lines, sewer line for drainage sullage sewage, street lights, and open space for parks, gardens and public utility, to create residential and other plots for building purposes in accordance with the plans, specifications and regulations, including building bye-laws framed under the City of Nagpur Corporation Act, 1948 as per the approval of the Development Engineer granted on 22-6-1979. The lease was granted for a period of 30 years as per the agreement dated 27-9-1982, registered on 5-10-1982. The period of lease expired on 31-3-2002 after lapse of 30 years.
6. The developmental activities were completed, but the said Society started selling plots from the portions earmarked and reserved for the purposes of garden, dispensary, public utility land, roads, open space and for the educational purposes, to certain individuals, who started carrying out the construction activities for various purposes, including residential, hotel/restaurant and other business activities. It seems that the representation was made on 2-1-2008 and thereafter also, to various authorities to prohibit such sale of land and construction thereon, but no notice of it was taken by those authorities and, therefore, this writ petition was filed on 13-3-2008.
7. The controversy involved in all these cases pertain to removal of encroachments and demolition of unauthorized and illegal constructions on the land admeasuring
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