Full Judgment Text
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CASE NO.:
Appeal (civil) 4309 of 2007
PETITIONER:
City and Industrial Development Corporation of Maharashtra & Anr
RESPONDENT:
Ekta Mahila Mandal & Anr
DATE OF JUDGMENT: 17/09/2007
BENCH:
Dr. ARIJIT PASAYAT & D.K. JAIN
JUDGMENT:
J U D G M E N T
CIVIL APPEAL NO. 4309 OF 2007
(Arising out of S.L.P. (C) No.842 of 2005)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order passed by a
Division Bench of the Bombay High Court at Aurangabad
directing appellant-City and Industrial Development
Corporation of Maharashtra (in short the ’CIDCO’) to consider
respondent No.1’s case for regularization of the existing plot
admeasuring 770 Sq. mtrs., located at N-7 Sector and on
regularization to accept the consideration at the rates
prevailing in 1981 for the plots reserved for educational
facilities. It was held that CIDCO’s stand that the said plot is
a green belt cannot be accepted.
3. Factual background in nutshell is as follows:
A writ petition was filed by the respondent No. 1 for a
direction to the appellants to regularize a plot of land which
was claimed to be under its possession. In the writ petition it
was stated that a group of house wives interested in social
service particularly for creating opportunities for children from
lower income groups formed a society called "Ektha Mahila
Mandal" in the N-7 Sector of CIDCO. Subsequently, it was
registered under the Bombay Public Trust Act, 1950 (in short
the ’Trust Act’) as a charitable trust and they started a
Balakwadi for the children coming from the lowest income
groups. Adjacent to the balakwadi of respondent no.1, there
was an open plot and the respondent no.1 constructed two
rooms along with one toilet block and the remaining land was
used as a playground for the students. Prayer in the writ
petition as noted above was for a direction to allot the same
plot in favour of respondent no.1 for educational purposes.
Appellants filed its reply and submitted that the plot
admeasuring 770 Sq. mtrs. located in N-7 Sector and on the
portion of which the constructions have been made is reserved
as a green belt and it cannot be allotted to the writ petitioner.
It was pointed out that another plot in N-7 Sector-1 was
available which admeasures about 2186 Sq. mtrs. and was
reserved for primary school and the writ petitioner was
informed about these factors. However, before CIDCO
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proceeded to invite application for allotment of this plot, a
section of the society resorted to agitations, demonstrations,
hunger strike and demanded that the portion of the plot was
reserved for Budha Vihar, it could not be allotted to any one
else. Under these circumstances, CIDCO could not proceed
further to consider the application for alternative plot.
4. Stand of the writ petitioner was that though in records
the plot in question was stated to be reserved for green belt, in
reality only a few trees existed. It was, therefore, stated that
the High Court should direct allotment of the plot to the writ
petitioner. The High Court appointed a Court Commissioner
to visit the land and submit a report. According to the report,
the area fenced by the writ petitioner measured 770 Sq. Mtrs.
The High Court felt that it was not sufficient to treat it as a
green belt. In the two rooms constructed, students were being
taught in shift basis and the atmosphere was very clumsy and
unhygienic. The sections were being run at three different
places. One section of the school was running in House No.68,
Sector G-7 in N-7 and the third section was being run in the
nearby hall called "Comrade Deshpande Social Facility Hall".
The High Court felt that after insertion of Article 21A of the
Constitution of India, 1950 (in short the ’Constitution’),
primary education to the children is a matter of fundamental
right. Since the writ petitioner was running a school, it is
necessary that CIDCO should regularize the entrusted plot.
Writ petitioner stated that it needed to construct about 8 to 12
class rooms, a toilet block separately for the male and female
children, Office for the Head Mistress, staff room, a laboratory
and Library and it proposes to build up a multi-storeyed
structure so that the major portion of the land would remain
open for plantation of trees on the boundary and for being
used as playground. Therefore, the direction as noted above
was given.
5. According to learned counsel for the appellants the High
Court could not have given direction for regularization of
encroachment of a part of the land which was notified as a
green belt area under the development plan. CIDCO is the
Special Planning Authority under Section 40 of the
Maharashtra Regional Town Planning Act, 1966 (in short the
’Act’). The subject area has been notified as a green belt under
the development plan. Sweeping directions have been given
not only to regularize the encroachment in the green belt but
also to allot the said plot of land at concessional rate at the
rate prevailing in 1981. It is pointed out that CIDCO has no
policy to regularize encroachments, more particularly, in areas
earmarked for a green belt. The reservation for green belt
notified under the development plan has statutory force.
Though in connected proceedings the High Court itself had
directed the authorities to remove encroachment on public
roads and open plots also included the encroachment in
garden tracks, pathway and service lines etc., a departure was
made in this case. There is no scope for the writ petitioners
taking shelter under Article 21A of the Constitution.
6. There is no appearance on behalf of the respondent No.1.
7. It is to be noted that Local Commissioner’s report pointed
out that the land in question was earmarked as a green belt.
It is the stand of the CIDCO that lower level tree plantation
has already been done and the balance work is being carried
on in a systematic manner. There is no policy for
regularization and as such any change in the reserved area
and earmarked areas under the development plan has to be
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under the Act. Article 21A of the Constitution cannot come to
aid to respondent No.1. What was essentially sought for by the
direction was regularization of unauthorized construction. In
essence what the High Court has directed is to regularize an
unauthorised occupation and regularization of unauthorised
encroachment. Merely because Article 21A of the Constitution
has treated primary education as a fundamental right, that
does not confer any right on an encroacher to seek
regularization of encroachment on the ground that ultimately
some children of the particular age group would be taught in
the school. In Dr. G.N. Khajuria & Ors. v. Delhi Development
Authority & Ors. (1995 (5) SCC 762) it was held that merely
because some structures of permanent nature had been
constructed is not relevant as the construction was made in a
land reserved for park in residential colonies. The allotment of
the land of the Delhi Development Authority was held to be
illegal and the same was considered to be misuse of power and
was illegal. The High Court has also not indicated any reasons
as to why the allotment was to be done at concessional rate at
the rate prevailing in the year 1981. Though this aspect loses
relevance in view of the conclusion that the High Court’s view
is not sustainable, yet this adds to the vulnerability of the
High Court’s order.
8. Looked at from any angle, the High Court’s order is
unsustainable and is set aside.
9. The appeal is allowed, but without any order as to costs.