Chetanbhai Kishorilal Mistry vs District Collector And Others

A.J. Desai, J

Rule. Learned, Assistant Government Pleader waives service of rule on behalf of the respondents. With the consent of learned advocates appearing for the respective parties, the matter is taken up for final disposal today itself.

By way of the present petition under Articles 14 and 226 of the Constitution of India, the petitioner has prayed for the following reliefs:-

"(A) Your Lordships may be pleased to admit and allow this petition.

(B) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction holding and directing that the action on the part of the respondent authorities in passing the impugned order dated 27.03.2018 is unjustified and illegal and in contravention and in disregard of the Resolution dated 8.1.1980 annexed at ANNEXURE-D and further be pleased to quash and set aside the impugned order dated 27.03.2018 being violative of Article 14 of Constitution of India.

(C) Pending hearing and final disposal of the present Special Civil Application, Your Lordships may be pleased to restrain the respondents and their agents and servants from taking any coercive action on the basis of the impugned order dated 27.03.2018 for the subject land in question and maintain status quo."

The case put forward by the petitioner is that the father of the petitioner constructed a house on Government land being Survey No. 430 paiki at Lunawada, Dist. Mahisagar (hereinafter referred to as „the land in dispute‟) and the petitioner is residing in the said residential premises since more than 50 years. It is the case of the father of the petitioner that he had purchased the property in open market. Thereafter, the petitioner applied for mutation of his name in the record of rights qua the land in dispute. However, it was denied by the District Collector under the provisions of Section 37(2) of the Bombay Land Revenue Code by holding that the land belongs to the State Government.

Since it was held that the land in question belongs to the State Government, the petitioner requested the respondent authority to regularize the construction of residential premises erected since last number of years. However, the District Collector vide impugned order dated 27.03.2018 has rejected the said application of the petitioner on the ground that the land belongs to the State Government and hence, cannot be regularized.

Hence this petition.

Mr. Jit P. Patel, learned advocate appearing for the petitioner would submit that since it was held by the District Collector that the land belongs to the State Government, the land on which the property is constructed, the petitioner requested to regularize the construction made by the petitioner and has shown his readiness and willingness to pay the market price of the land. However, the authorities have rejected the said application as if the petitioner is claiming title being the owner of the property. He would further submit that in pursuance of the application of the petitioner, positive report was submitted by the City Survey Superintendent, Lunawada in favour of the petitioner to grant the land accepting that the construction is an old one and that too after verifying the necessary documents.

He would further submit that the respondent authority ought to have considered several Government Resolutions for regularizing the encroachment upon the land. He has relied upon the Circular dated 8.1.1980 issued by the Revenue Department of the State of Gujarat and would submit that the matter can be considered under Clause 8 of the said Circular. He would further submit that the petitioner belongs to OBC/ST category and, therefore, the respondent authorities may be directed to reconsider the case of the petitioner in accordance with the said Government Resolution. He would further submit that on the land in question, in past the Collector has regularized other such constructions which are similar to that of the petitioner. He, therefore, would submit that the petition be allowed.

On the other hand, learned Assistant Government Pleader has opposed this petition.

I have heard learned advocates appearing for the respective parties and perused the impugned order. It is not the case of the petitioner that he is the owner of the property in question upon which the residential premises has been erected. Therefore, the petitioner had applied for regularizing the encroachment on the land upon which residential premises is constructed by the petitioner and has shown his readiness and willingness to pay the market price of the land. It is also pertinent to note that City Survey Superintendent has also opined in favour of the petitioner and has verified that the premises in question is 50 years old.

In view of the above facts, if the impugned order of the District Collector is perused, I am of the opinion that the District Collector has committed an error in rejecting the application of the petitioner only on the ground that the land in question belongs to the State Government. Hence, I am of the opinion that the petition requires consideration and hence the same is allowed. The order dated 27.3.2018 passed by the District Collector, Mahisagar is hereby quashed and set aside. The District Collector, Mahisagar is hereby directed to reconsider the application of the petitioner afresh after giving an opportunity of hearing to the petitioner and examine all the materials including Government Resolutions by which the Collector has power to regularize such encroachment. The Collector shall also take into consideration that in past, such constructions on the land in question have been regularized. Till the application of the petitioner is decided, the respondent authorities shall not disturb the possession of the petitioner. Rule is made absolute to the above extent.

In view of disposal of main writ petition, Civil Application No. 1 of 2018 does not survive and it is accordingly disposed of.

Direct service is permitted.