Bombay High Court Upholds Allotment of Gairan Land for Affordable Housing Scheme

Mumbai: The Bombay High Court has dismissed a petition challenging the allotment of ' Gairan ' (grazing) land to the Pimpri Chinchwad Municipal Corporation for developing affordable housing under the Prime Minister Awas Yojana (PMAY). A division bench presided over by Chief Justice Devendra Kumar Upadhyaya ruled that the State Government's power to dispose of government land under Section 40 of the Maharashtra Land Revenue Code, 1966 (MLRC) overrides the prohibition on diverting Gairan land under Section 22A of the same code.

The court also held that upon inclusion of an area into municipal limits, the land use prescribed in the Development Plan prepared under the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act) prevails over the previous classification, including Gairan land, by virtue of the Maharashtra Municipal Corporations Act, 1949.

Background of the Case

The petition challenged an order dated June 18, 2018, by the District Collector, Pune, allotting a 1H 46R piece of land in Gut No. 96, Mauje Ravet, Pune, to the Pimpri Chinchwad Municipal Corporation (Respondent No. 4) for a PMAY affordable housing project. Consequential actions, including a Tahasildar's order dated July 13, 2018, directing possession handover and revenue entry alterations, were also challenged. The land in question was recorded in revenue records as Gairan land. Prior to the allotment, the land was included within the municipal limits and reserved for economically weaker sections (EWS) housing in the sanctioned Development Plan.

Petitioners' Arguments

The petitioners, represented by Senior Advocate Shri Anil Anturkar , contended that the allotment of Gairan land was illegal, citing the prohibition in Section 22A(1) of the MLRC, which restricts the diversion of such land for any other use. He argued that exceptions under Section 22A(2) (for public purpose where no other suitable land is available) or Section 22A(3) (for private projects with compensatory land) were not applicable or complied with. Shri Anturkar submitted there was no evidence that no other suitable government land was available for the PMAY project. He further argued that merely being reserved for housing in the Development Plan does not strip the land of its Gairan character or make Section 22A inapplicable. He also alleged that the Collector abdicated his discretion under Section 40 of the MLRC by acting solely on the State Government's directions.

Respondents' Submissions

Opposing the petition, the State, represented by learned Additional Government Pleader Shri Chandurkar , and the Corporation, represented by Senior Advocate Shri Ashutosh Kumbhakoni , argued that the allotment was for a legitimate public purpose – housing for the economically weaker sections under PMAY – which is an exception under Section 22A(2) of the MLRC.

They emphasized that the land was reserved for EWS housing in the sanctioned Development Plan. Shri Kumbhakoni particularly highlighted that upon the inclusion of the village within the municipal limits (effective September 11, 1997), the provisions of the MRTP Act and the sanctioned Development Plan became applicable to the land. He argued that Section 3(3)(b) of the Maharashtra Municipal Corporations Act, 1949, makes the Development Plan applicable "notwithstanding anything contained in any other law," meaning it overrides the previous Gairan classification. He also pointed to Section 52(2) of the MRTP Act, which penalizes land use contrary to the Development Plan, asserting that using the land as Gairan after it was zoned for housing would be illegal.

Crucially, both respondents relied on Section 40 of the MLRC, which states, "Nothing contained in any provision of this Code shall derogate from the right of the State Government to dispose of any land... on such terms and conditions as it deems fit." They argued this provision grants the State absolute power to dispose of government land, effectively overriding Section 22A. They also cited judgments of the court (Madhukar Sampatrao Patil & Ors. Vs. State of Maharashtra & Ors., Municipal Corporation of City of Thane Vs. Mukesh Ramful Gupta) to support the principle that the Development Plan overrides prior land use. Regarding the abdication of discretion, they argued the State's letter merely asked the Collector to take an "appropriate decision at his level."

Court's Analysis and Decision

The High Court found merit in the respondents' arguments. The bench held that Section 40 of the MLRC grants the State Government an "almost absolute right" to dispose of government land, irrespective of other provisions in the Code, including Section 22A. The court stated:

"The language in which Section 40 is couched leaves no room of doubt that the right of the State Government to dispose of any of its land or property is irrespective of any provision of MLRC, 1966 for the reason of opening phrase occurring in Section 40 is 'nothing contained in any provision of this Code'. Thus, we are of the opinion that by operation of Section 40 of the MLRC, 1966, the State Government is vested with right to dispose of any land of the Government... irrespective of any other provision available in MRLC, 1966 including Section 22A."

The court further agreed that upon the land's inclusion within the municipal area, the Development Plan prepared under the MRTP Act became applicable and prevails over the prior Gairan classification. The bench observed that Section 3(3)(b) of the Corporations Act, 1949, ensures that statutory plans like the Development Plan apply to the added area "notwithstanding anything contained in any other law." They noted that Section 52(2) of the MRTP Act reinforces this by penalizing use contrary to the Development Plan.

"...the user of the land as per the prescription of the Development Plan prepared under Section 34/35 of the MRTP Act, 1966 in respect of the additional area will prevail over the land use of the land in the additional area which was in existence prior to inclusion of the additional area within the municipal limits..."

The court also found that the allotment was made for a "larger public interest and public purpose" under the PMAY scheme, which provides affordable housing to EWS.

Finally, the court rejected the argument that the Collector abdicated discretion, finding that the State's letter merely asked the Collector to make an "appropriate decision at his level" rather than issuing a binding directive.

In conclusion, the court found no illegality in the Collector's order of allotment or the consequential actions. The petition was accordingly dismissed. The court also refused to extend the interim order previously granted to the petitioners.