Dhrupatabai Gangadhar Chhapewar v. The State of Maharashtra Through Its Secretary and Others

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 8727 OF 2024 Dhrupatabai W/o Gangadhar Chhapewar, Age: 55 years, Occu. Agri., R/o Main Road, Dr. Ambedkar Nagar, Ardhapur,Tq. and Dist. Nanded. ... PETITIONER V/s.

¶1The State of Maharashtra, Through its Secretary, Revenue and Forest Department, 6th Floor, Mantralaya, Mumbai – 400 32.

¶2The District Collector, Nanded Tq. and Dist. Nanded.

¶3Sub-Divisional Officer, Nanded, Tq. and Dist. Nanded.

¶4Tahsildar, Ardhapur Tq. Ardhapure, Dist. Nanded. ... RESPONDENTS ..... Mr. S.S. Gangakhedkhar, Advocate for the Petitioner Mr. M. M. Nerlikar, Addl. GP for the Respondent-State ..… CORAM : RAVINDRA V. GHUGE & Y.G. KHOBRAGADE, JJ. RESERVED ON : 21st August, 2024 PRONOUNCED ON : 04th September, 2024 JUDGMENT (Per: Y.G. Khobragade, J.):-

¶1Rule. Rule made returnable forthwith. Mr. Nerlikar the learned Addl. GP waives service of notice on behalf of Respondent Nos.1 and 2. With 2024:BHC-AUG:20650-DB ( 2 )

the consent of both the sides, the matter is heard finally at the stage of admission.

¶2We have considered the strenuous submissions canvassed on behalf of the Petitioner as well as on behalf of the Respondents. By the present Petition under Article 226 of the Constitution of India, the Petitioner has prayed for issuance of Writ of Mandamus to consider the report submitted by Respondent No.3 on 08.07.2011 and his representation dated 02.06.2023 for regularization of his encroachment on Gairan Land bearing Gut No. 679 ad-measuring 2 Hectare in pursuance of Government Resolution dated

28.11.1991.

¶3The learned counsel for the Petitioner submits that late Shri Bhima Chappewar i.e. the father in law of the present Petitioner was in possession of land bearing Gut No. 679 ad-measuring 2 Hectare since 1984. After demise of her father in law, her husband was in possession and was cultivating the said land and after demise of her husband, she is in possession and cultivating the said land. During life time, her father in law had submitted an application for regularization of said Gairan land as per G.R. dated 28.11.1991. Thereafter, the Revenue Department made an enquiry and prepared spot Panchnama on

25.01.2011 stating therein that the deceased Bhima, Gangaram and his family are having possession over the said land. Accordingly, on 29.09.2010, the ( 3 )

Respondent No.3 sent a proposal for regularization of said Gairan land to the Respondent No.2 Collector, Nanded but possession of said land could not be regularized in favour of the Petitioner and her family. Therefore, on

08.07.2011 and 02.06.2023, the Petitioner submitted representations but said representations were not decided and the land was not regularized.

¶4Per contra, the learned AGP canvassed that the Petitioner is praying for regularization of encroachment on Gairan Land bearing Gut No. 679 ad-measuring 2 Hectare as per G.R. dated 28.11.1991 on the ground that her father in law late Shri Bhima Chappewar was in possession of land since 1984 and after demise of her father in law, her husband was in possession and after demise of her husband, she is in possession of the said land and she is cultivating the said land, however, on 29.09.2010, the Sub-Divisional Officer Nanded submitted its report stating that as per G.R. dated 28.11.1991, the encroachments on Gut No. 679 were regularized but as per order dated

16.03.1989, the said land ad-measuring 2.02 H.R. was given to the Maharashtra Khadi Gramodyog Mandal for development of Rayon Industry but on 19.07.2007 the Maharashtra Khadi Gramodyog Mandal returned said land because of non utilization. Though, possession of Petitioner is shown as per revenue record from 1982-83 to 1999-2000 as well as per 7/12 extract of 1983-84, encroachment of Petitioner's father-in-law was shown to the extent of 60 R and as per Pere-Patrak (Cultivation Record) of 1983-84 to the extent of ( 4 )

1.00 H.R. but as per G.R. dated 28.11.1991, no land hold lease was shown in the name of Petitioner's father in law. So also, Shri Gangadhar Bhima Chappewar, the husband of the Petitioner had filed Regular Civil Suit bearing R.C.S. No. 2 of 2005 for decree of declaration and permanent injunction which was dismissed. So also, the Petitioner with her children had filed a civil suit bearing R.C.S. No. 944 of 2012 for declaration that they are entitled for regularization of their possession over the Writ land but said suit was also dismissed on 02.05.2016. The Petitioner and her children had also preferred an Appeal bearing RCA No. 64 of 2016 challenging judgment and decree dated

02.05.2016, but said appeal was also dismissed on 09.06.2022. Being aggrieved by both these judgments, the Petitioner preferred Second Appeal bearing No. 611 of 2022 before this Court, however, on 24.02.2023, the Petitioner with her children have withdrawn said appeal. Therefore, judgment and decree passed by the learned Civil Judge Senior Division, Nanded came to be confirmed by the learned First Appellate Court. Therefore, the Petitioner is not entitled for regularization of her encroachment on said Gairan land. To buttress this submissions, the learned AGP has placed reliance on the case of Jagpal Singh and Ors. V/s. State of Punjab & Ors.; AIR 2011 SC 1123.

¶5Needless to say that as per G.R. dated 28.11.1991, encroachment on Gairan land can be regularized if the possession over the Gairan land is of ( 5 )

person belonging to Scheduled Caste is found during tiller dates 1st April, 1978 to 14th April, 1990. The relevant clauses of the GR read as under:- ¼ 1 ½ fnukad 1 ,fizy 1978 vkf.k 14 ,fizy 1990 ;k dkyko/khr o fnukad 14 ,fizy 1990 jksth vfLrRokr vlysyh vfrdze.ks fu;ekuqdwy dj.;kr ;kohr % ¼ 2 ½ vfrdze.k dj.kk&;k O;Drhps fuR;kps okLrO;kps fBdk.k ¼ ;qToy Iysl vkWQ jslhMUl ½ fu;ekuqdwy djkok;kP;k tfeuhP;k 8 fd-eh-P;k ifjljkr vlkos-¼ 3 ½ lnj dkyko/khe/;s vfrdze.k dj.kk&;k O;Drhus vfrdzfer dsysyh tehu fdeku ,d o'kZ rjh dlyh vlyh ikfgts-¼ 4 ½ vfrdze.k dj.kk&;k izR;sd O;Drhps tkLrhr tkLr 2 gsDVj ftjk;r tehu ,o<s vfrdze.k fu;ekuqdwy dj.;kr ;kos-¼ 5 ½ vfrdze.k dj.kk&;k O;DrhdMs R;kauh /kkj.k dsysyh dkgh ftjk;r tehu vlY;kl v'kk O;DrhP;k ckcrhr 2 gsDVj {ks= iw.kZ dj.;klkBh tso<s {ks= vko';d vlsy rso<sp ftjk;r {ks= fu;ekuqdwy dj.;kr ;kos-¼ 6 ½ vfrdzej.k dj.kk&;k O;Drhus vfrdze.kkP;k laiw.kZ dkyko/khrhy vkdkj.kh ¼ vlslesaV ½ vkf.k eglwy lafgrsP;k dye 20 P;k rjrwnhizek.ks naM vkdkjysyk vlY;kl rks Hkj.ks vko";d jkghy-¼ 7 ½ vfrdze.k dj.kkjh O;Drh tj ekxkloxhZ; vlsy rj tfeuhP;k vkdkj.khP;k 6 iVh brdh vkf.k vekxkloxhZ; vlsy rj vkdkj.khP;k 24 iV brdh dCtsgDdkph jDde egkjk'Vª tehu eglwy ¼ ljdkjh tfeuhph foYgsokV dj.ks ½ fu;e] 1971 P;k rjrqnhizek.ks Hkj.;kl ik= jkghy-¼ 8 ½ vfrdze.k dj.kkjh O;Drh tfeuhP;k d`f"kd okijkckcr loZlk/kkj.k ¼ vkWfMZujh ½ d`f"kd vkdkj.kh Hkj.;kl ik= jkghy-f"kok; lu 1971 P;k ljdkjh tfeuh okVikckcrP;k fu;ekrhy fu;e 43 ¼ 1 ½ ¼ v ½ e/khy dz ¼ pkj ½ ¼ ikp ½ vkf.k ¼ lgk ½ ;k "krhZgh vfrdze.k dj.kk&;k O;Drhoj yko.;kr ;kO;kr-¼ 9 ½ ;k fu.kZ;kizek.ks fu;ekuqdwy dj.;kr ;ko;kph vfrdze.ks fu;e 43 ¼ 1 ½ ¼v½ ¼ pkj ½ ¼ ikp ½ vkf.k ¼ lgk ½ ;ke/;s fofgr dsysY;k 'krhZ o vVhauk v/khu jkgrhy- ( 6 )

¼ 10 ½ ;k fu.kZ;kizek.ks fu;ekuqdwy djko;kP;k vfrdze.kkackcr fu;e 11 5 e/;s foghr dsysyh okf'kZd mRiUukph e;kZnk vkf.k fu;e 17 [kkyh foghr dsysyh tehu okVikckcrph dk;Zi/nrh f"kFkhy dj.;kr ;koh vkf.k ¼ 11 ½ tehu iznkukps vkns"k vkf.k lunk vfrdze.k dj.kk&;k O;DrhP;k vkf.k R;kP;k iRuhP;k ¼ vfookfgr fo/kwj fo/kok O;Drh lksMwu ½ ukokus "kklu ifji=d] eglwy o ou foHkkx dz-,y,uMh-1089 @1044 @86&v&1 fnukad 7 es e/;s fnysY;k lwpukaizek.ks dk<.;kr@ns.;kr ;kosr-

¶6In the case in hand the Petitioner claimed that since 1984, her father in law was in possession of said land and after demise of her father in law, her husband was in possession and was cultivating the Writ land, so also after her husband's death, she is in possession and cultivating the Writ land after demise of her husband. During life time of her father in law he had submitted an application for regularization over the Gairan land as per G.R. dated 28.11.1991. Thereafter, the Revenue Department made an enquiry and prepared spot Panchnama on 25.01.2011 stating therein that the deceased Bhima, Gangaram and Petitioner are having possession over the land. Accordingly, on 29.09.2010, the Respondent No.3 sent a proposal for regularization on Gairan land to the Respondent No. 2 Collector, Nanded, but her possession over said Gairan land was not regularized.

¶7In the case of Jagpal Singh and Ors. (supra), the Hon'ble Supreme Court held as under: "22. Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for ( 7 )

eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/Poramboke/Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land."

¶8Needless to say that, on 29.09.2010, the Sub-Divisional Officer, Nanded submitted a report and observed that as per G.R. dated 28.11.1991 all the encroachments on Gut No. 679 were regularized but as per order dated

16.03.1989, the Writ land ad-measuring 2.02 HR was given to the Maharashtra Khadi Gramodyog Mandal for development of Rayon Industry and encroachment of the Petitioner's father-in-law was not regularized. On

19.07.2007 the Maharashtra Khadi Gramodyog Mandal returned said land because of non utilization. Therefore, it appears that the father in law of the Petitioner was not in actual possession of the Writ land on 16.03.1989 and on

19.07.2007. Merely revenue record from 1982-83 to 1999-2000, 7/12 extract ( 8 )

of 1983-84 encroachment of Petitioner's father in law was shown to the extent of 60 R and Pere-Patrak (Cultivation Record) of 1983-84 to the extent of 1.00 H.R., but no land hold lease was shown in the name of Petitioner's father in law as per G.R. dated 28.11.1991.

¶9In the case of Balwant Singh & Anr. vs. Daulat Singh (Dead) by Lrs & Ors.; (1997) 7 SCC 137, the Hon'ble Supreme Court of India has held that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue.

¶10In case of Suraj Bhan & Ors. V/s. Financial Commissioner & Ors.;

(2007) 6 SCC 186, the Hon'ble Supreme Court of India has held that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. Entries in the revenue record or jamabandi have only "fiscal purpose" i.e. payment of land revenue, and no ownership is conferred on the basis of such entries.

¶11It is not in dispute that late Shri Gangadhar Bhima Chappewar, the husband of the Petitioner had filed Regular Civil Suit bearing (R.C.S.) No. 2 of 2005 before the Civil Court and prayed for decree of declaration and permanent injunction but the said suit was dismissed. Not only this but the Petitioner with her children had also filed a civil suit bearing R.C.S. No. 944 of ( 9 )

2012 for declaration that they are entitled for regularization of their possession over the Writ land. On 02.05.2016, the learned Civil Judge Sr. Dn., Nanded passed judgment and declined to grant decree of declaration and injunction in respect of Writ land. Thereafter, Petitioner and her children had preferred an appeal bearing R.C.A. No. 64 of 2016 challenging judgment and decree dated

02.05.2016 but said appeal was also dismissed on 09.06.2022. Being aggrieved by the concurrent findings of both the Courts below, the Petitioner and others had preferred Second Appeal bearing S.A. No. 611 of 2022 before this Court, however, on 24.02.2023 the Petitioner with her children have withdrawn the said Second Appeal. Therefore, judgment and decree passed by the learned Civil Judge Senior Division, Nanded was confirmed by the learned First Appellate Court. Therefore, under these circumstance, unless judgment and decree passed by the learned Civil Judge, Sr. Dn., which was confirmed by the learned First Appellate is set aside the Petitioner is not entitled for regularization of her encroachment on the Gairan land.

¶12Nonetheless, the Petitioner has not pleaded that, she is landless lady belonging to Scheduled Caste or Schedule Tribe, therefore, as per law laid down in the case of Jagpal Singh and Ors. (supra), the Petitioner is not entitled for regularization of her encroachment on said Gairan land. ( 10 )

¶13In view of above discussion, this Petition is dismissed. Rule is discharged. [Y.G. KHOBRAGADE, J.] [RAVINDRA V. GHUGE, J.] mub