High Court
Legal Reasoning
1 wp 7210.24.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 7210 OF 2024Manohar Bhagaji GaikwadVERSUSThe State Of Maharashtra Through It’s Principal Secretary AndOthers...Advocate for Petitioner : Mr. I.K. Wagh AGP for Respondents : Mr. P. K. Lakhotiya...CORAM :S. G. CHAPALGAONKAR AND NEERAJ P. DHOTE, JJ.Dated:July 04, 2025FINAL ORDER :-1.The petitioner impugns the communications/orderdated 20.11.2023 and 2.2.2024 issued by respondent no.5Tahsildar, Chhatrapati Sambhajinagar and also seeks writ ofmandamus/directions against the respondent authorities totake appropriate decision for regularization of theGovernment/Gairan land in favour of petitioner in terms ofdirections given by the Supreme Court of India in case ofJagpal Singh Vs. State of Punjab as well as policy laid down inthe Government Resolution dated 12.7.2011.2.Mr. Ishwar Wagh, learned advocate appearing forpetitioner submits that petitioner belongs to ‘Kaikadi 2 wp 7210.24.odtCommunity’, which is recognized as ‘Scheduled Caste’. He islandless person. The petitioner is in possession ofGairan/Grampanchayat land gat no.32 situated at Zalta, Tq. &District Chhatrapati Sambhajinagar since more than 35 years.Entry as to encroachment of the petitioner has been mutated inrevenue record on 20.10.2011 for area admeasuring 2 H. Thepetitioner is cultivating land and earning his livelihood.Encroachment of petitioner has been certified by villagePanchayat vide certificate dated 12.6.2012 therebyacknowledging possession of the petitioner for more than 25years over the Gairan Land. Petitioner made an application forregularization of his encroachment in terms of the GovernmentResolution dated 28.11.1991 which stipulates that Governmenthas taken decision to regularize the encroachments made bylandless labours or persons belonging to the ScheduledCaste/Scheduled Tribes. Accordingly, on 11.4.2018 DistrictCollector, Aurangabad had addressed a communication toTahsildar directing him to examine proposal of petitioner interms of Government Resolutions dated 28.11.1991 and12.7.2011 and take further decision. Further, DivisionalCommissioner, Aurangabad has issued a communication dated30.10.2018 directing the District Collector, Aurangabad to
Legal Reasoning
3 wp 7210.24.odtconsider and decide proposal of the petitioner forregularization of the encroachment.3.Mr. Wagh, would further submit that, in light ofguidelines laid down by the Hon’ble Supreme Court of India incase of Jagpal Singh Vs. State of Punjab reported in (2011)(11) SCC 396 and in terms of the Government Resolution ofthe year 2011, petitioner is entitled for regularization of theencroachment. However, respondent authorities have failed totake appropriate decision. 4.Per contra, Mr. P.K.Lakhotiya, learned AGPappearing for Respondents/ State relying on affidavit-in-replyfiled by Mr. Paresh Gajanan Choudhary, Tahsildar, ChhatrapatiSambhajinagar submits that land gat no.23 at village Zalta is aGovernment land. Petitioner is encroacher. It is not a case ofauthorized possession or lease by the Stat Government infavour of the petitioner. In these circumstances, petitioner'sclaim does not fit in Government Policy of regularization interms of Government Resolutions issued in year 2011 ordirections given by Supreme Court of India in case of JagpalSingh (supra). Mr. Lakhotiya, would further submit that, thisCourt in Criminal Application No.516 of 2015 issued directions 4 wp 7210.24.odtto the State authorities to not to regularize encroachmentsmade by private persons on Government Gairan land. In lightof the aforesaid crystallized legal position, petitioner's claim forregularization of unauthorized encroachment on GovernmentLand has been rejected and decision is communicated to thepetitioner. 5.Having considered submissions advanced bylearned advocates appearing for the respective parties and onperusal of record tendered into service before this Court, it isdiscernible that petitioner is a landless person belonging toScheduled Caste Community. The entry as to hisencroachment on land gat no.32 admeasuring 2H is firstlyrecorded in the year 2010-2011 vide mutation entry dated20.10.2011. There is no authentic record as to his possessionover Government land barring aforesaid entry. Although,petitioner relies on a certificate issued by Sarpanch of villagePanchayat Zalta-Sundarwadi that petitioner is in possession ofthe Gairan land for last 25 years, however, this certificatecannot be considered as an authentic document on the point ofencroachment. 5 wp 7210.24.odt6.Petitioner moved his proposal for regularization ofencroachment in the year 2016. Eventually, such proposal willhave to be dealt with in accordance with the policy laid downby the State of Maharashtra under Government Resolutiondated 12.7.2011 and directions given by the Supreme Court ofIndia in case of Jagpal Singh and ors Vs. State of Punjab.7.In paragraph no.14 of the decision in case ofJagpal Singh and others after referring to the decision in caseof M.I. Builders (P). Ltd., Vs. Radhey Shyam Sahu reported in1999 (6) SCC 464 and Friends Colony, DevelopmentCommittee Vs. State of Orissa reported in 2004 (8) SCC 733following observations are made, which reads as under :-“In our opinion this decision will apply with evengreater force in cases of encroachment of villagecommon land. Ordinarily, compounding in suchcases should only be allowed where the land hasbeen leased to landless labourers or members ofScheduled Castes/Scheduled Tribes, or the land isactually being used for a public purpose of thevillage e.g. running a school for the villagers, or adispensary for them.”8.Further, in paragraph no.22 while directing theState Governments to frame the scheme for speedy eviction ofillegal occupants, following observations are made, whichreads thus :- 6 wp 7210.24.odt“Long duration of such illegal occupation or hugeexpenditure in making constructions thereon orpolitical connections must not be treated as ajustification for condoning this illegal act or forregularizing the illegal possession. Regularizationshould only be permitted in exceptional cases e.g.where lease has been granted under someGovernment notification to landless labourers ormembers of Scheduled Castes/Scheduled Tribes,or where there is already a school, dispensary orother public utility on the land.”9.In deference to the decision in case of JagpalSingh, State of Maharashtra framed policy for removal of theencroachments. Clause nos. 3 and 4 of aforesaid Resolutionreads thus :-^^3-v’kh vfrdze.ks [kqi dkyko/kh iklwuph vkgsr fdaokR;kojhy cka/kdkekoj izpaM [kpZ dj.;kr vkyk vkgsv’kk dkj.kkLro dks.kR;kgh vfrdze.kkl laj{k.kns.;kr ;sm u;s rFkk v’kh vfrdze.ks fu;ekuqdwydj.;kr ;sow u;sr-4-T;k izdj.kkr ‘kklukP;k fu.kZ;k}kjs Hkwehfgu ‘ksretwj]vuqlwfpr tkrh@tekrhrhy O;Drh bR;knhaps vfrdze.kfu;ekuqdwy dj.;kckcr ;kiwohZp fu.kZ; ?ks.;kr vkykvkgs] v’kh vfrdze.ks rlsp ‘kkGk] nok[kkuk fdaok brjlkoZtfud iz;kstukFkZ cka/kdke ;kaph vxksnjp vfLrRokrvlysyh vfrdze.ks oxG.;kr ;kohr-** 10.In light of aforesaid crystallized legal position, ifcase of the petitioner is examined, it is evident that petitionercould not bring on record any authentic material indicating hisencroachment was proceeded by lawful entry like lease by 7 wp 7210.24.odtGovernment. He relies only on mutation entry dated20.10.2011, which is subsequent to Government Resolution ofthe year 2011. Admittedly, petitioner's entry over the Gairanland is as a Rank Encroacher and not permissive in nature.Although, encroachments of persons belonging to backwardclasses, particularly, Scheduled Castes and Scheduled Tribescan be considered for regularization, it is in the exceptionalcase, only where initial possession is permissive in nature. Theaforesaid exception have no application where person is RankEncroacher and taking benefit of lapses in administration or bycollusion with officers, continued such possession.11.As rightly, pointed out by Mr. Lakhotiya, learnedAGP, Division Bench of this court in Suo Moto Public InterestLitigation No.2 of 2022 (High Court on its own Motion Vs.State of Maharashtra and others) passed interim order dated6.10.2022 directing that “there shall be no furtherregularization of any encroachment by any authority/officer ofGovernment until further orders of this Court, except in themanner directed by the Supreme Court in Jagpal Singh”.12.On careful scrutiny of petitioner's case in light ofthe directives of Hon’ble Supreme Court in case of Jagpal 8 wp 7210.24.odtSingh, no right is available to petitioner to seek regularizationof his encroachment. 13.In that view of the matter, we find writ petition isdevoid of merits, hence dismissed.( NEERAJ P. DHOTE, J. ) ( S. G. CHAPALGAONKAR, J. )aaa/-….