City and
Industrial Development Corporation of Maharashtra & Anr Vs. Ekta Mahila
Mandal & Anr [2007] Insc 935 (17 September 2007)
Dr.
Arijit Pasayat & D.K. Jain
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 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 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.
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