Writ Petition No. 3126 of 2020 · Bombay High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.3126 OF 2020 1) 2) 3) 4) 5) 6) 7) 8) 9) Kanhaiya s/o Dwarka Kuril, Age Major, Occupation Labour, Bhurumal s/o Birulal Kuril, Age Major, Occupation Labour, Raju s/o Gunjalal Kuril, Age Major, Occupation Labour, Santosh Laxman Kuril, Age Major, Occupation Labour, Ravi s/o Sudamrao Hanwate, Age Major, Occupation Labour, Tulsabai Ramesh Kale, Age Major, Occupation Labour, Sunil s/o Keshavrao Shirpurkar, Age Major, Occupation Labour, Guruling s/o Murlidhar Kale, Age Major, Occupation Labour, Ishwarlal s/o Puran Kuril, Age Major, Occupation Labour, 10) Kamal Suresh Dhoke, Age Major, Occupation Labour, 11) Shakuntalabai Kundlik Waghmare, Age Major, Occupation Labour, 12) Shantabai Kisanlal Basamkar, Age Major, Occupation Labour, 2 WP 3126-2020 13) Pralhad Hiraman Wathore, Age Major, Occupation Labour, 14) Chandrakalabai Shamrao Mane, Age Major, Occupation Labour, 15) Parubai Subhash Dhabe, Age Major, Occupation Labour, 16) Hanuman Raghunath Shahu, Age Major, Occupation Labour, 17) Bharat Chotelal Kuril, Age Major, Occupation Labour, 18) Manohar Babulal Kuril, Age Major, Occupation Labour, 19) Dhanran Shakuntala Kuril, Age Major, Occupation Labour, 20) Raju Bhikarilal Kuril, Age Major, Occupation Labour, 21) Shantabai Brahma Kuril, Age Major, Occupation Labour, 22) Nagesh Daniya Sheni, Age Major, Occupation Labour, 23) Sunil Babulal Kuril, Age Major, Occupation Labour, 24) Bindralal Ramai Kuril, Age Major, Occupation Labour, 25) Sham Gangadin Kuril, Age Major, Occupation Labour, 26) Chandrabai Hiralal Kuril, Age Major, Occupation Labour, 3 WP 3126-2020 27) Gendalal s/o Kaluram Kuril, Age Major, Occupation Labour, 28) Pyarelal Babulal Kuril, Age Major, Occupation Labour, 29) Mannulal Channulal Kuril, Age Major, Occupation Labour, 30) Shivram Gajulal Kuril, Age Major, Occupation Labour, 31) Kamlabai Bholaram Kuril, Age Major, Occupation Labour, 32) Nathulal Jodhalal Kuril, Age Major, Occupation Labour, 33) Vinod Pyarelal Kuril, Age Major, Occupation Labour, 34) Pushpabai Prakash Rakewar, Age Major, Occupation Labour, 35) Chandabai Shankarlal Kutil, Age Major, Occupation Labour, 36) Kisanlal Chagyalal Kuril, Age Major, Occupation Labour, 37) Chandrakalabai Neminath Aher, Age Major, Occupation Labour, 38) Nirmaladevi Rukhmichand Shahu, Age Major, Occupation Labour, 39) Chunam Bhumesh Sayana, Age Major, Occupation Labour, 40) Mahadu Motiram Paikrao, 4 WP 3126-2020 Age Major, Occupation Labour, 41) Bhikaji Parashram Bajad, Age Major, Occupation Labour, 42) Laxminarayan Bhaveral Kuril, Age Major, Occupation Labour, 43) Bajrang Dwarka Kuril, Age Major, Occupation Labour, 44) Shamlabai Suresh Totalu, Age Major, Occupation Labour, 45) Ramu Kunjilal Kuril, Age Major, Occupation Labour, 46) Radheshyam Manikrao Mudiraj, Age Major, Occupation Labour, 47) Laxminarayan Rangana Mudiraj, Age Major, Occupation Labour, 48) Raju s/o Mohanlal Devas, Age Major, Occupation Labour, 49) Baban Dharab Khillare, Age Major, Occupation Labour, 50) Balram Ramdas Gandhi, Age Major, Occupation Labour, 51) Kachru Laxman Dhalke, Age Major, Occupation Labour, 52) Santosh Dnyaneshwar Wankhede, Age Major, Occupation Labour, 53) Ashok Narayan Khillare, Age Major, Occupation Labour, 5 WP 3126-2020 54) Mainabai Ganpu Wangikar, Age Major, Occupation Labour, 55) Lila Laxmanrao Purjalkar, Age Major, Occupation Labour, 56) Suresh Dhondiba Shinde, Age Major, Occupation Labour, 57) Sunita Shivram Lomte, Age Major, Occupation Labour, 58) Ram Narayan Khillare, Age Major, Occupation Labour, 59) Satish Uttamrao Ghuge, Age Major, Occupation Labour, 60) Kachru Shankar Ranite, Age Major, Occupation Labour, 61) Pandit Kundlik Khillare, Age Major, Occupation Labour, 62) Madhav Shamrao Jagtap, Age Major, Occupation Labour, 63) Rukhmin Ramesh Ghuge, Age Major, Occupation Labour, 64) Rukhmini Tukaram Wable, Age Major, Occupation Labour, 65) Narayan Devdas Kadam, Age Major, Occupation Labour, 66) Tulshabai Shrawan Dhabe, Age Major, Occupation Labour, 67) Vinod Mohan Devhans, Age Major, Occupation Labour, 6 WP 3126-2020 68) Sham Digru Kuril, Age Major, Occupation Labour, 69) 70) Jagan Babula Kuril, Age Major, Occupation Labour, Popat Dwarka Kuril, Age Major, Occupation Labour, 71) Mukinda Parashram Wankhede, Age Major, Occupation Labour, 72) Sudam Zazbi Hanwate, Age Major, Occupation Labour, 73) Kisan Dashrath Kale, Age Major, Occupation Labour, 74) Kalu Dwarka Kuril, Age Major, Occupation Labour, 75) Sunil Kunjilal Kuril, Age Major, Occupation Labour, 76) Kailash Gangadin Kuril, Age Major, Occupation Labour, 77) Ramhans Janglya Gandhi, Age Major, Occupation Labour, 78) Radhabai Madanlal Gupta, Age Major, Occupation Labour, 79) Ravindra Kanduappa Mendre, Age Major, Occupation Labour, 80) Rekha Raju Kamble, Age Major, Occupation Labour, 81) Uttam Sitaram Kale, 7 WP 3126-2020 Age Major, Occupation Labour, 82) Dipak Tulshiram Kamble, Age Major, Occupation Labour, 83) Gangaram Kundlikrao Khillare, Age Major, Occupation Labour, 84) Usha Ganesh Mandge, Age Major, Occupation Labour, 85) Dashrath Vitthal Chatse, Age Major, Occupation Labour, 86) Balram Sayanna Mudiraj, Age Major, Occupation Labour, 87) Neelabai Bhimrao Gete, Age Major, Occupation Labour, 88) Ashok Babanrao Wankhede, Age Major, Occupation Labour, 89) Roshni Chandrakant Jadhav, Age Major, Occupation Labour, 90) Shankarrao Yeshwantrao Popale, Age Major, Occupation Labour, 91) Anushya Rajaram Bhoyar, Age Major, Occupation Labour, 92) Bhainabai Vinod Hanwate, Age Major, Occupation Labour, 93) Mohan Budhalal Kuril, Age Major, Occupation Labour, 94) Shaikh Mahemudabi Shaikh Miya, Age Major, Occupation Labour, 8 WP 3126-2020 95) Aminabi Noor Shaikh, Age Major, Occupation Labour, 96) Mumtaj Begum Shaikh Feroz, Age Major, Occupation Labour, 97) Alftabi Maheboob Shaikh, Age Major, Occupation Labour, 98) Shaikh Abdulkhuddas Sk. Bhikan, Age Major, Occupation Labour, 99) Begum Babu Shaikh, Age Major, Occupation Labour, 100) Shaikh Syed Mannan Sattar, Age Major, Occupation Labour, 101) Akil Miya Shaikh, Age Major, Occupation Labour, 102) Abedabi Raheman Khan, Age Major, Occupation Labour, 103) Laxmanbai Ramesh Mohankar, Age Major, Occupation Labour, 104) Sk. Khurshid Sk. Bismillah, Age Major, Occupation Labour, 105) Jarina Gaffar Shaikh, Age Major, Occupation Labour, 106) Laxmibai Govinda Zulzule, Age Major, Occupation Labour, 107) Muni Bi Shaikh Chand, Age Major, Occupation Labour, 108) Sugra Bi Shaikh Mohammad, Age Major, Occupation Labour, 9 WP 3126-2020 109) Hamid Khan Sannaulla Khan, Age Major, Occupation Labour, 110) Chhaya Shivaji Bondhare, Age Major, Occupation Labour, 111) Vijay Anandrao Jadhav, Age Major, Occupation Labour, 112) Banobi Mohammad Khan Pathan, Age Major, Occupation Labour, 113) Shaikh Najir Majid, Age Major, Occupation Labour, 114) Fatema Bi majid Shaikh, 115) Prakash Ratanlal Periya Age Major, Occupation Labour, 116) Aminabegum Gaus Khan Pathan, Age Major, Occupation Labour, 117) Mariyabi Maheboob Shaikh, Age Major, Occupation Labour, 118) Bandu Gyanba Wankhede, Age Major, Occupation Labour, 119) Kousar Bi Pathan Rashid Khan, Age Major, Occupation Labour, 120) Shaikh Baba Shaikh Miya, Age Major, Occupation Labour, 121) Juber Khan Jabar Khan Pathan, Age Major, Occupation Labour, 122) Radheysham Ratanlal Periya, Age Major, Occupation Labour, 10 WP 3126-2020 123) Sakharam Babaji Raje, Age Major, Occupation Labour, 124) Sitaram Maroti Rankhambe, Age Major, Occupation Labour, 125) Ganesh Sitaram Kale, Age Major, Occupation Labour, 126) Ashabi Nasir Shaikh, Age Major, Occupation Labour, 127) Taher Bi Yusuf Sayed, Age Major, Occupation Labour, 128) Shaikh Salim Shaikh Kattu, Age Major, Occupation Labour, 129) Shaikh Shakilabanno Shaikh Miya, Age Major, Occupation Labour, 130) Yunus Ibrahim Sayed, Age Major, Occupation Labour, 131) Sheshrao Bhavrao Kadam, Age Major, Occupation Labour, 132) Jabar Khan Afsar Khan Pathan, Age Major, Occupation Labour, 133) Shaikh Chinnu Shaikh Lal, Age Major, Occupation Labour, 134) Salobi Shaikh Mohammad, Age Major, Occupation Labour, 135) Syed Hussain Syed Sattar, Age Major, Occupation Labour, 136) Shaikh Majid Shaikh Kattu, 11 WP 3126-2020 Age Major, Occupation Labour, 137) Rizwan Bi Shaikh Pasha, Age Major, Occupation Labour, 138) Shaikh Musha Hyder, Age Major, Occupation Labour, 139) Syed Azam Shah, Age Major, Occupation Labour, 140) Gauskhan Mohammad Khan Pathan, Age Major, Occupation Labour, 141) Pathan Khadira Begum Mahemud Kha, Age Major, Occupation Labour, 142) Shaikh Maheboob Shaikh Yasin, Age Major, Occupation Labour, 143) Shaikh Osman Shaikh Suleman, Age Major, Occupation Labour, 144) Shaikh Babu Shaikh Bismilla, Age Major, Occupation Labour, 145) Dhurpatibai Ganpat Pachunde, Age Major, Occupation Labour, All R/o Gadipura Talabkatta (Jaleshwar Talav) Hingoli, Tq. And Dist. Hingoli. …..Petitioners VERSUS 1) The State of Maharashtra, Through : The Secretary of Revenue and Forest Minister, Mantralaya, Mumbai. 2) The District Collector Hingoli. 12 WP 3126-2020 3) 4) 5) Sub-Divisional Officer Hingoli. The Tahsildar Hingoli The Chief Officer, Municipal Council Hingoli, Tq. And Dist. Hingoli. …..Respondents
Legal Reasoning
….. Advocate for Petitioners : Mr. A. L. Kanade GP for Respondent Nos.1 to 4 -State : Mr. D. R. Kale Advocate for Respondent No.5 : Mr. V. V. Bhavthankar ….. CORAM : RAVINDRA V. GHUGE & ARUN R. PEDNEKER, JJ Date of Reserving The Judgment 03/10/2022 : Date of Pronouncing The Judgment : 24/11/2022 JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the parties heard finally. 2. Heard learned Advocate Mr. A. L. Kanade for petitioners, learned GP Mr. D. R. Kale for respondent Nos.1 to 4 and learned Advocate Mr. V. V. Bhavthankar for respondent No.5. 3. By the present writ petition the petitioners are seeking direction to the respondent authorities to regularize their residential premises 13 WP 3126-2020 over the government land known as Gadipura Talabkatta Hingoli, Taluka and District Hingoli. The petitioners are relying upon the Government Resolution dated 04/04/2002, issued by the Revenue and Forest Department, Mantralaya, Mumbai, whereby a Government has taken policy decisions to regularize encroachments made over the Government lands for residential purpose (slum areas). The petitioners further prayed that the notices for eviction issued by the Tahsildar and Executive Magistrate, Hingoli dated 01/02/2020, may be stayed. The petitioners contend that they belong to the Scheduled Castes, Tribes and other minorities and are residing at the said place for more than 50 years by constructing houses and by raising shed. 4. The Tahsildar has issued notice dated 01/02/2020 to the petitioners and 195 other persons in the vicinity, directing them to remove the residential encroachment made over Gadipura Talabkatta Hingoli (Jaleshwar Talav Hingoli), Taluka and District Hingoli. The petitioners submit that they have been paying house taxes, water taxes towards the Municipal Council of Hingoli and are also paying electricity charges to the Maharashtra State Electricity Board. Petitioners submit that they are in peaceful enjoyment of the said property and by virtue of the said GR dated 04/04/2002, the petitioners are protected as they are residing over the said land prior to 1995 and even their names are 14 WP 3126-2020 included in the voters list of Hingoli Assembly Constituency. The petitioners further prayed that in terms of the GR dated 04/04/2002, respondents be directed to regularize their residential structures. 5. The petitioners are protected by an interim order of this Court dated 21/02/2020. 6. The respondents in their reply submit that the notice dated 01/02/2020 clearly stipulates that the encroachment has to be removed on account of Gadipura Talabkatta Hingoli (Jaleshwar Talav Hingoli) is a pond, which is a public place and the said pond needs development. Notice stipulates that there is encroachment on the pond area and that there was earlier notice issued on 28/02/2018, and in the inquiry that was initiated by the notice dated 28/02/2018, it has been found that the petitioners have encroached on the pond area and they are being directed to remove the structures, failing which the State would be compelled to do so and the expenses for the same would be recovered from the petitioners. 7. The Hon’ble Supreme Court has issued directions in Civil Appeal No.1132 of 2011 @ SLP © No.3109/2011 (Jagpal Singh & Ors. vs. State of Punjab & Ors.), dated 28th January, 2011, to evict 15 WP 3126-2020 illegal occupants from Gram Sabha/Gram Panchayat/ Poramboke/Shamlat land and the land has to be restored for the common use of villagers of the village. This Court in case of Writ Petition (PIL) No.1515 of 2008 and oth) Atmaram Dasrath Ukey and Ors. vs. The State of Maharashtra and Ors., decided on 26/02/2019, has directed Municipal Corporation to take vacant possession of land and develop it for the purpose for which it is preserved. 8. The learned GP relied upon the case in Atmaram Dasrath Ukey (Supra) in which the Nagpur Bench directed Municipal Corporation to take vacant possession of land and develop it for the purpose for which it is preserved. 9. The learned GP on behalf of the State submits that the petitioners are obstructing the water way and has encroached on a public ponds which needs to be developed and that the said GR is not applicable to the case of the present petitioners. The learned AGP relies on the Judgment in Jagpal Singh & Ors. vs. State of Punjab & Ors. (Supra) whereby following specific directions have issued by the Hon’ble Supreme Court that :- “22. Before parting with this case we give directions to all the 16 WP 3126-2020 State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/Poramboke/Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior ofcers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justifcation for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notifcation to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land.” 10. In the case of Jagpal Singh (Supra), the Hon’ble Supreme Court at paragraph Nos.17 and 18 observed as under :- 17. In this connection we wish to say that our ancestors were not fools. They knew that in certain years there may be droughts or water shortages for some other reason, and water was also required for cattle to drink and bathe in etc. Hence they built a pond attached to every village, a tank attached to every temple, etc. These were their traditional rain water harvesting methods, 17 WP 3126-2020 which served them for thousands of years. 18. Over the last few decades, however, most of these ponds in our country have been flled with earth and built upon by greedy people, thus destroying their original character. This has contributed to the water shortages in the country.” 11. Having considered the rival submissions and perused the GR dated 04/04/2002, whereby the State has come up with a policy to regularize the residential encroachment prior to 1995. The said GR relates to “’kkldh; tfeuhoj >kysyh >ksiMiV~Vhph vfrdze.ks fu;ekuqdwy dj.ks o rs djrkauk cktkjeqY;@ HkqbZHkkMs o R;kojhy O;kt vkdkj.ks- ¼eqacbZ o eqacbZ miuxj oxGwu½-” The said GR relates to regularization of slums on Government land and the declaration of any slum to be done by the authorities. 12. Considering the GR dated 04/04/2002 and above cited Judgments of Hon’ble Supreme Court and this Court, we direct the State that if the petitioners are found to be eligible for rehabilitation in terms of GR 17/11/2018 and 04/04/2002, then in terms of the policy of the State, the petitioners should be rehabilitated under the rehabilitation Scheme at any other places as may be stipulated in the Scheme. However, the State would be entitled to evict the petitioners immediately from the present area of occupation since the 18 WP 3126-2020 encroachment is made in a area for Pond and the pond is required for public use. The petitioners should be accommodated after such a scheme for rehabilitation is implemented by keeping the petitioners on wait list, if they are found eligible in terms of the scheme.
Decision
13. In view of above, the writ petition stands disposed off. Rule is discharged in above terms. ( ARUN R. PEDNEKER, J. ) ( RAVINDRA V. GHUGE, J. ) vj gawade/-.