IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO. 3003 OF 1990
Ganpat s/o. Ashruba Koli ]..Petitioners
(since deceased) his L.Rs.
1) Narayan s/o. Ganpat Koli,
Age. 56 yrs., Occ. Service & Agri.
R/o. Wasadi, Tal. Kannad,
Dist. Aurangabad.
2) Ashok s/o. Ganpat Koli,
Age. 42 yrs., Occ. Service & Agri.
R/o. Wasadi, Tal. Kannad,
Dist. Aurangabad.
3) Sow. Mandanbai w/o. Madhavrao Suryawanshi,
Age. 50 yrs., Occ. Household & Agri.
R/o. Borsar, Tal. Kannad,
Dist. Aurangabad.
4) Sou. Indubai w/o. Kacharu Wagh,
Age. 48 yrs., Occ. Household & Agri.,
R/o. Nimbhora, Tal. Kannad,
Dist. Aurangabad.
5. Sou. Sulochana w/o. Sarjerao Birare,
Age. 46 yrs., Occ. Household & Agri.,
R/o. Ghatshendra, Tal. Kannad,
Dist. Aurangabad.
6. Sou. Latabai Bhikan Bale,
Age. 44 yrs., Occ. Household & Agri.,
R/o. Upla, Tal. Kannad,
Dist. Aurangabad.
VERSUS
1. The State of Maharashtra ]..Respondents
2. The Secretary to Govt. of
Maharashtra, Mantralaya, Bombay.
3. The Divisional Commissioner,
Aurangabad.
::: Downloaded on - 09/06/2013 14:18:48 :::
( 2 )
4. The Collector, Aurangabad.
5. Sub-Divisional Officer-R,
Tal. Vaijapur, Dist. Aurangabad.
6. Tahsildar, Kannad,
Dist. Aurangabad.
7. Block Development Officer,
Tal. Kannad, Dist. Aurangabad.
Shri N.N. Shinde, Advocate for the petitioners.
Mrs. B.R. Khekale, A.G.P. for the respondents.
CORAM : P.R. BORKAR, J.
DATED : 3rd FEBRUARY,2009.
ORAL JUDGMENT :-
:
. This is a writ petition filed by original
encroacher – Ganpat Ashruba Koli for regularization of
encroachment made by him in view of Government
Resolution dated 12th September, 1979, produced at
Exh. “B” with the petition and to give directions to
the respondents not to dispossess the petitioner from
Survey No.46 (Gat No.220) of village Vasadi, Tal.
Kannad and to quash and set aside order dated
03.02.1988 whereby the petitioner was informed that
his encroachment cannot be regularized as the land is
‘Khalwadi’ (land used for threshing harvest).
2. The facts giving rise to this petition may be
stated as below:-
::: Downloaded on – 09/06/2013 14:18:48 :::
( 3 )
. Original petitioner Ganpat Ashruba Koli was
resident of village Vasadi, Tal. Kannad, Dist.
Aurangbad. He claimed that he had been in possession
of Survey No.46 (Block No.220) since the time of his
forefather. They have been cultivating the land.
Since they have made encroachment over the said
Government land, as per G.R. dated 12.09.1979, he is
entitled to have the encroachment regularized. He
made applications to that effect to respondent
authorities.
by
However, respondent authorities informed
letter dated 03.02.1988 (copy of which is produced
at Exh.”Z-1″) that since the land was ‘Khalwadi’, G.R.
dated 12th September, 1979, is not applicable and his
prayer cannot be granted. At the same time the
respondents have also taken steps for taking back
removal of encroachment and gave notice of eviction.
In the circumstances, the petitioner approached this
Court for directions to the respondents to regularise
the encroachment and not disturbing his possession.
3. Respondent Nos.4 and 6 have appeared and filed
affidavit-in-reply. They stated that the land in
question is ‘Khalwadi’ and as such the G.R. in
question is not applicable. The encroachment cannot
::: Downloaded on – 09/06/2013 14:18:48 :::
( 4 )
be regularized under the policy of the Government.
The respondents relied upon G.R. dated 18th January,
1996, copy of which is taken on record and marked
“R-X” for identification. It is also stated that
though Grampanchayat has passed resolution and
recommended case of the petitioner for regularisation,
the property is belonging to the Government. The
Grampanchayat is not possessor and/or owner of the
property and cannot have any say in disposal of the
property. It is also stated that the petitioner had
made
encroachment and cultivating land unauthorizedly
since 1970-71 and not prior to that.
4. At Exh.”A” the petitioner produced his caste
certificate to show that he belonged to Koli Mahadev –
a Scheduled Tribe. Exh. “B” is the G.R. in question
and it relates to regularization of the encroachment
made for cultivation on the Government waste lands,
Gairan lands, revenue forest lands and forest lands
incharge of the Forest Department. The criteria for
regularization were laid down. The date relevant for
regularization is 31.03.1978. By the said G.R. in
question it was made clear that all those
encroachments made in between 01.04.1972 to 31.03.1978
irrespective of whether the encroachment was
::: Downloaded on – 09/06/2013 14:18:48 :::
( 5 )
subsisting on 31.03.1978 should be regularized.
Various terms and conditions for regularization are
also laid down. The extent to which regularization
can be made is also laid down in paragraph 7. The
G.R. also lays down that the regularization can be up
to a particular area of land and it is referred to as
‘Standard Area’. At Exh. “C” there is a letter dated
30.12.1961 informing the original petitioner Ganpat
Koli in response to his application dated 18.12.1961
and 19.12.1961 addressed to the Dy. Collector,
Vaijapur,
that this land was ‘Khalwadi’ land and same
cannot be given for cultivation. So, it is clear that
in 1961-1962 the petitioner had applied for getting
the land from ‘Khalwadi’ for cultivation. At Exh.
“D” there is a letter dated 16.08.1962 giving a sort
of certificate that Survey No.46 known as ‘Khalwadi’
in record was cultivable and threshing of corn was
never done in that land as it was away from village
locality. So, appropriate action as per law may be
taken. At Exh.”H” there is a copy of resolution dated
25.10.1965 in which the Grampanchayat stated in
response to query from superiors that it was informed
that the Government was considering granting land from
Survey No.46 ‘Khalwadi’ to petitioner Ganpat Ashru for
cultivation. The land is 18 acres. So, the
::: Downloaded on – 09/06/2013 14:18:48 :::
( 6 )
Grampanchayat resolved that it might be given to two
families. It is made clear that the land was not
required by the Grampanchayat and it had no objection
if it was brought under cultivation.
5. Then there is some correspondence and
reminders. At Exh.”K” there is panchanama drawn on
06.06.1970, which shows that the petitioner Ganpat
Ashruba had been in possession of the property for
previous four years. He had no documents and
permission
of the Government. It is also stated that
there were 15 trees of Moha, which were missing at the
time of panchanama. Petitioner – Ganpat Ashroba was
informed not to cultivate the land without permission
of the Tahsil office. At Exh. “L” there is a letter
dated 09.03.1972, whereby the Tahsildar, Kannad,
called upon petitioner Ganpat Ashruba Koli to show
cause why action should not be taken against him as he
had illegally sown Bajra in Survey no.42, which was
encroachment. Similar notice for removal of
encroachment dated 07.08.1972 is produced at Exh.
“M”. Another notice for removal of the encroachment
within 3 days and for furnishing explanation was given
on 30.06.1975. Its copy is at Exh.”N”. So, it is
clear that 1970 onwards the petitioner had been in
::: Downloaded on – 09/06/2013 14:18:48 :::
( 7 )
possession of the land in question and he was
cultivating it.
6. At Exh.”P” there is a public notification
calling upon objections to granting land in question
to the petitioner. It was issued by the Tahsildar
Office. Its covering letter is at Exh. “O”. So, it
is clear that some of the respondents had taken steps
for regularization and some procedure was followed.
At Exh.”T” there is a letter dated 23.10.1986 sent by
Talathi
to the Tahsildar regarding information
income taken by the petitioner from the land.
about
At Exh.
“V” there is letter dated 21.01.1988 by the Collector
calling some information regarding regularization.
V.F. 7/12 extracts are produced at Exh.”X” by the
petitioner. They show that the land is ‘Khalwadi’
and the name of the petitioner was shown as cultivator
from 1970-71 onwards. It is mentioned that there is
encroachment made by the petitioner. At Exh.”Y” there
is application made by some homeless persons to the
Collector requesting that land provided for Gharkul
Yojna (scheme for providing housing to the homeless
persons) may be shifted from Block No.220 as the same
was not convenient. At Exh.”Z-1″, there is letter in
question dated 03.02.1988, which is impugned. It is
::: Downloaded on – 09/06/2013 14:18:48 :::
( 8 )
information by the S.D.O., Vaijapur to the Collector
that since the land was ‘Khalwadi’, as per G.R.dated
03.08.1982, the encroachment cannot be regularized and
it is this action which is challenged.
7. Learned Advocate Shri N.N. Shinde for the
petitioner has taken me through all above documents
and argued that the petitioner belongs to Nomadic
Tribe; he is landless person; he is in possession of
atleast from 1970-71 onwards as per revenue record.
The
land
Grampanchayat has passed resolution for
for cultivation to the petitioner and under
granting
the
circumstances the writ petition may be allowed.
8. Mrs. Khekale, learned A.G.P. appearing for
the respondents argued that as per copy of G.R. dated
18th January, 1996, which is marked as Exh.”R-X”, it
is Government policy that since the lands Khalwad,
Wadgi are not Gairan lands, their distribution should
not be made without prior permission of the
Government. The Government waste lands, Gairan,
Gurcharan lands are different lands and Khalwad lands
should not be included or treated as Government waste
lands, Gairan or Gurcharan lands without specific
directions by the Government. Reference was made to
::: Downloaded on – 09/06/2013 14:18:48 :::
( 9 )
earlier G.R. dated 16/19 June, 1984. It is also made
clear that Khalwad lands are very few and they are
used by villagers for threshing. It is also stated
that such lands are useful for extension of Gavthan
and for Gharkul schemes. Said G.R. further makes it
clear that such Khalwad lands should be used only for
threshing and for drying fodder temporarily and any
encroachment thereon should be removed.
9. This writ petition is under Article 226 of the
Constitution of India.
only if the
ig So this Court can grant relief
case of the petitioner strictly falls
within four corners of the policy of the Government as
enunciated in various Government Resolutions and
Schemes. G.R. dated 12th September, 1979, produced
at Exh. “B” speaks about Government waste lands,
Gairan lands, revenue forest lands and various lands
incharge of Forest Department. G.R. dated 18th
January, 1996, has made it very clear that the
Government did not intend to treat ‘Khalwad’ land as
Gairan or Government waste lands. So, the policy of
the Government is very clear and unless it is shown
that the Government has changed policy subsequently,
it is not possible for this Court to direct that the
encroachment by the petitioner should be regularized.
::: Downloaded on – 09/06/2013 14:18:48 :::
( 10 )
Whether particular land should be allowed to be
cultivated is a matter of policy. Only in case
particular policy is laid down and there is
discrimination in implementing the policy, in such
event only this Court can grant necessary relief. In
this case G.R. dated 18th January, 1996, produced by
the A.G.P. makes it clear that G.R. dated 12th
September, 1979, is not applicable to ‘Khalwadi’ lands
and as such, case of the petitioner is not covered by
said G.R. dated 12th September, 1979 and he is not
entitled to get benefit of the same.
10. In view of above, this writ petition is
dismissed. Interim relief, if any, granted earlier
stands vacated. Rule discharged.
[P.R. BORKAR, J.]
snk/2009/JAN09/wp3003.90
::: Downloaded on - 09/06/2013 14:18:48 :::