3098.21-wp (1).docx

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.3098 OF 2021

Santosh Madhukar Bhondve & Ors. } ….. Petitioners

Versus

State of Maharashtra & Ors. } ….. Respondents

Shri Anil Anturkar, Senior Advocate with Shri Sugandh B .

Deshmukh for petitioners.

Shri P. P. Kakade, Government Pleader with Shri O. A.

Chandurkar, Additional Government Pleader and Ms. G. R.

Raghuwanshi, AGP for respondents 1 to 3 (State).

Shri Ashutosh Kumbhakoni, Senior Advocate with Shri Rohi t

Sakhadeo for respondent no. 4 (PCMC).

CORAM: DEVENDRA KUMAR UPADHYAYA, CJ. &

AMIT BORKAR, J.

RESERVED ON : AUGUST 19, 2024

PRONOUNCED ON : SEPTEMBER 12, 2024

JUDGMENT (PER : CHIEF JUSTICE)

1.Heard Shri Anil Anturkar, learned Senior Advocate

representing the petitioners, Shri Chandurkar, learned Additional

Government Pleader for respondent Nos.1 to 3 – State and

Shri Ashutosh Kumbhakoni, learned Senior Advocate

representing respondent No.4 – Pimpri Chinchwad Municipal

Corporation.

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BASAVRAJ

GURAPPA

PATIL

Digitally

signed by

BASAVRAJ

GURAPPA

PATIL

Date:

2024.09.12

17:04:49

+0530 2024:BHC-AS:36714-DB

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(A) Challenge:

2. This petition has been instituted assailing the validity of an

order dated 18

th

June 2018 passed by the District Collector, Pune

whereby a piece of land admeasuring 1H 46R comprised in G ut

No.96 situate at Mauje Ravet, Taluka Haveli, Dist. Pune has been

allotted to respondent No.4 - Pimpri Chinchwad Municipal

Corporation (hereinafter referred to as the Corporation) for

development of a scheme of affordable housing under the Prime

Minister Awas Yojana (hereinafter referred to as the PMAY).

3.The petition also challenges an order dated 13

th

July 2018

passed by the Additional Tahasildar, Pimpri Chinchwad, Talu ka

Haveli, Dist. Pune whereby the Additional Tahasildar has directed

the Divisional Office, Chinchwad that possession of the land in

question shall be given to the Commissioner of respondent No.4

– Corporation and that the compliance report should be

submitted along with panchnama, 7/12 extract, possession

receipt and sketch map in relation to advance possession of the

said land. The letter/order dated 13

th

July 2018 further provides

that the Commissioner of respondent No.4 shall be granted

certificate of occupancy Class-II and that the said entry shall be

made in the revenue records. Challenge has also been ma de to

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the letter dated 9

th

July 2018 written by the Commissioner of

respondent No.4 to the Collector, Pune whereby consent was

given to all the 10 conditions mentioned in the order of allotment

made by the Collector, dated 18

th

June 2018. The petition also

challenges the possession receipt dated 21

st

July 2018 executed

between the Surveyor, Department of Urban Planning, Pim pri

Chinchwad Municipal Corporation, Pimpri and the Divisiona l

Officer, Chinchwad, Taluka Haveli, Dist. Pune on behalf of the

Additional Tahasildar, Chinchwad, Taluka Haveli, Dist. Pune.

An order dated 21

st

December 2012 passed by the

Tahasildar, Haveli, Pune has also been challenged wher eby an

area of 0/20R in Gut No.96 has been reserved for the office and

residence of Talathi and another area of 0/20R has bee n

reserved for the office and residence of Divisional Officer. The

said order directed the Talathi office to register the entry to the

said effect in the revenue records.

(B) Background facts:

4.The facts which are necessary for proper adjudication of

the issues involved in this petition and which can be culled out

from the pleadings and documents available on record of t his

petition are;

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(a) Gut No.96 having total area of 7H 43R situate at

village Ravet, Taluka Haveli, Dist. Pune was reserved

for economically weaker section of the society.

(b) Respondent No.4 made a request for allotment of an

area of 1H 46R out of Gut No.96 for development.

(c) As per the revenue record of rights (Village Form

No.7) the said land is recorded as

gairan land which

means land for grazing cattles.

(d) By means of an order dated 21

st

December 2012

passed by the Tahasildar concerned, an area of 0/20

R was reserved for the office and residence of Talathi

and in addition, an area of 0/20R was reserved for the

residence and office of Divisional Officer.

(e) Respondent No.4 – Corporation made a request for

allotment of an area of 1H 46R for development, free

of charge, out of Gut No.96.

(f) The Divisional Commissioner, sometime in the year

2018 proposed the said land for transfer to

respondent No.4 for development of housing for

economically weaker section of the society.

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(g) The State Government, in the department of Revenue

and Forest, vide its letter dated 26

th

April 2018

intimated to the Collector that the Government had

received a proposal to transfer the land in question to

respondent No.4 for housing under the PMAY for

economically weaker section of the society. The said

letter further provided that the Collector, Pune should

take appropriate decision at his level for providing the

subject land to respondent No.4 on such terms and

conditions as the Collector may deem appropriate, for

the purposes of constructing housing for economically

weaker section and low-income group beneficiaries

under the PMAY.

(h) The Collector, thus, decided in accordance with the

provisions contained in Section 40 of the Maharashtra

Land Revenue Code, 1966 (hereinafter referred to as

the MLRC, 1966 ) read with Rule 5 of the

Maharashtra Land Revenue (Disposal of Government

Lands) Rules, 1971 (hereinafter referred to as the

Rules, 1971) to allot the subject land for the project

under the PMAY – Home for All 2022 Scheme.

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(i) The project of construction of housing under the PMAY

was approved by the State Approval and Coordination

Committee (SACC) on 18

th

October 2017 as per the

requirement of clause 1 of the Government decision

dated 19

th

September 2016.

(j) The Collector, thus, passed the impugned order dated

18

th

June 2018 wherein decision to allot the subject

land is embodied by taking recourse to the powers

vested in him under Section 40 of the MLRC, 1966

read with Rule 5 of the Rules, 1971.

(k) Pursuant to the said allotment order dated 18

th

June

2018 the Commissioner of respondent No.4 wrote a

letter to the State Government accepting the

conditions of allotment as mentioned in the allotment

order dated 18

th

June 2018 and thereafter the

Additional Tahasildar concerned, vide his letter dated

13

th

July 2018 directed the Divisional Officer,

Chinchwad that possession of land admeasuring 1H

46R out of Gut No.96 be handed over to respondent

No.4 and accordingly, a compliance report be

submitted along with panchnama, 7/12 extract,

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possession receipt and a sketch map in reference to

the advance possession. It also provided that

requisite entry in the revenue records shall also be

made.

(l) The possession was, thus, handed over to respondent

No.4 and accordingly a possession receipt was also

executed between the Department of Urban Planning

of respondent No.4 and the Divisional Officer,

Chinchwad.

(m) The revenue entries were also accordingly made as is

apparent from a perusal of Village Form No.6 and

Village Form No.7 enclosed at pages 34 and 35 of the

writ petition which were prepared under the

Maharashtra Land Revenue Record of Rights and

Registers (Preparation and Maintenance), Rules 1971.

5.Thus, the order/letter of allotment passed/issued by the

District Collector, Pune, dated 18

th

June 2018 and other

consequential actions such as handing over possession,

execution of possession receipt and ancillary corresponden ce

have been challenged by the petitioners, besides the order dated

21

st

December 2012, whereby certain area of Gut No.96 has

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been reserved for construction of office and residence of Talathi

and for construction of office and residence of the Divi sional

Officer has also been challenged.

(C) Submissions of Shri Anil Anturkar, learned Senior

Advocate appearing for the petitioners :

6.Impeaching the impugned allotment order dated 18

th

June

2018 passed by the District Collector, Pune, it has been argued

on behalf of the petitioners that in view of the prohibition on

diversion of use of

Gairan land as contained in Section 22A of

the MLRC, 1966, the allotment of land by the Collector in favour

of respondent No.4 – Corporation is illegal.

7.It has been argued by Shri Anturkar that Section 22A(1)

creates a prohibition on diversion of use of

Gairan land according

to which the land which is set apart for free pasturage of village

cattles shall not be diverted, granted or leased for any other use.

His further submission is that such diversion is permissible only

under the provisions of sub section (2) or (3) of Section 22A of

the MLRC, 1966 which provides for exceptions to the prohibition

contained in Section 22A. It has been contended on behalf of

the petitioners by Shri Anturkar that sub section (2) of Section

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22A of the MLRC, 1966 permits diversion of Gairan land for

public purpose or for public project of the Central Government or

the State Government or any other statutory or public authority

or undertaking under the Central/State Government only if no

other suitable piece of Government land is available for such

public purpose or public project. He has also stated that

exception carved in sub Section (3) of Section 22A permit s

diversion, grant or lease of

Gairan land for a project proponent,

not being a public authority when such

Gairan land is

unavoidably required for such project and such project

proponent transfers to the State Government, compensatory

land in terms of the provisions contained in sub Section (4) and

(5) of Section 22A. It has been argued, thus, by Shri Anturkar

that in absence of any material to establish that no land other

than the subject land was available for the PMAY, the prohibition

as contained in Section 22A shall operate in full force and,

hence, the impugned allotment order dated 18

th

June 2018

passed by the Collector is vitiated.

8.Further submission of the learned Senior Advocate

representing the petitioners is that it is completely wrong to

assume that since the land in question is reserved for housing

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purposes in the Development Plan prepared under the

Maharashtra Regional and Town Planning Act, 1966 (herei nafter

referred to as the MRTP Act, 1966 ), as such it was not

necessary to comply with the provisions of Section 22A of t he

MLRC, 1966 and that only because the land in question has been

reserved for housing purposes in the Development Plan, it will

not ceased to be a

Gairan land and therefore, Section 22A of the

MRLC, 1966 is applicable to the facts of the instant case. Shri

Anturkar has argued that such an assumption on the part of the

respondent authorities is absolutely untenable and as a matter of

fact, even on inclusion of the village, where the land in question

is situated, within the limits of the municipal body (respondent

No.4), the MLRC, 1966 will not cease to operate and both the

enactments viz., MRTP Act, 1966 and MLRC, 1966 shall apply.

9.He has further argued that merely because the land in

question is shown in the residential zone or for housing purpose

in the Development Plan, it will not mean that the provisions of

Section 22A of the MLRC, 1966 has to be given a go-bye.

Submission further, as advanced by Shri Anturkar challe nging

the impugned allotment order dated 18

th

June 2018, is that the

Collector has abdicated his discretion and has acted on the diktat

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of the State Government in the Department of Revenue a nd

Forest and while passing the impugned order dated 18

th

June

2018 allotting the land in question in favour of respondent No.4

Collector has acted solely on the directions of the State

Government. According to Shri Anturkar, thus, the disc retion

vested in the Collector under Section 40 of the MLRC, 1966 has

not been exercised by the Collector for making allotment of the

land in faovur of respondent No.4 by applying his independen t

mind to the facts and circumstances as also the law applicable in

relation to disposal of any Government land under Section 40 of

the MLRC.

10.On the aforesaid grounds, it has been argued on behalf of

the petitioners that the impugned action on the part of th e

Collector in allotting the subject land and accordingly altering the

revenue entries and giving possession of the subject lan d to

respondent No.4 – Corporation is illegal and is liable to be

quashed.

(D) Arguments on behalf of the State – authorities:

11.Opposing the writ petition, an affidavit in reply has been

filed by the Collector stating therein that the State of

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Maharashtra has issued Government Resolution/Circular da ted

14

th

December 1998 mentioning therein that an area which is

already included in the final Development Plan of a Plan ning

Authority for a specific reservation, can be allotted for public

purpose and further that Section 22A(2) of the MLRC, 1966 also

provides that even

Gairan land can be diverted/granted or

leased for public purpose or the public project of the Centra l

Government or the State Government and accordingly, suc h a

land was available and has been allotted for a public

purpose/public project.

12.In the affidavit in reply filed by the Collector, it has also

been stated that the land was allotted for public purpose of

constructing housing for economically weaker section of t he

society for the reason that the area in question was reserved in

the sanctioned Development Plan of the respondent Corporati on

for the residence of economically weaker section of the society.

Shri Chandurkar, learned Additional Government Pleader, on the

basis of the statements made in the affidavit in reply filed by the

Collector, has thus, argued that the subject land has been

allotted to respondent No.4 – Corporation for a public purpose

keeping in view the purpose for which it has been reserv ed in

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the Development Plan as sanctioned by the State Governme nt

under the MRTP Act and hence, the impugned order of allotm ent

does not warrant any interference by this Court in this petition.

(E) Submission of Shri Ashutosh Kumbhakoni, learned

Senior Advocate representing respondent No.4 –

Corporation:

13.Appearing on behalf of respondent No.4 – Corporation, it

has been argued by Shri Kumbhakoni, learned Senior Advoc ate

that after inclusion of the village where the subject l and is

situated within the municipal area, the Development Pl an was

prepared wherein land in question has been reserved for

economically weaker section of the society. According to Shri

Kumbhakoni, after sanction to the draft Development Plan is

accorded by the State Government under Section 31 of the M RTP

Act, 1966, such plan becomes final and forms part of the statute

itself for the reason that any exercise of powers in terms of the

provisions of the MRTP Act for preparation/sanction of plan is

statutory in nature. His further submission is that the subject

land has been allotted in favour of respondent No.4 –

Corporation for construction of houses for economically weaker

section of the society which is a public purpose and considering

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this aspect of the matter alone, this Court ought not exercise its

discretion vested in it under Article 226 of the Constitution of

India for interfering with the impugned allotment order.

14.He has further argued that the land in question was

included in the municipal limits on 11

th

September 1997 in terms

of the provisions contained in Section 3(3)(a) of the Maharashtra

Municipal Corporations Act, 1949 (hereinafter referred to as the

Corporations Act, 1949 ) which provides that the State

Government, in consultation with the Corporation, may alter the

limits of a municipal area by including therein or excl uding

therefrom, such area as may be specified in the notification to be

issued for the said purpose. Drawing our attention to t he

provisions of Section 3(3)(b), Shri Kumbhakoni has argued that

in case any area is included within the limits of a Municipality,

any appointments, notifications, notices, taxes, orders, schemes,

licenses, permissions, rules, bye-laws etc. which were in force in

the Municipality, shall apply to and be in force in respect of the

additional area included in the municipality. He has specifically

mentioned that Section 3(3)(b) contains a

non-obstante clause

which provides that such appointments, notifications, notices,

taxes, orders, schemes, licenses, permissions, rules, bye-laws

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etc. shall apply to the additional area as well, notwithstanding

anything contained in any other law which may be in force at the

relevant time.

15.It is his submission that it is not that by inclusion of the

land in question in the municipal area of respondent –

Corporation, MLRC, 1966 will have no application, however, in

case of conflict all the provisions of the Corporations Act, 1949

shall prevail by virtue of operation of Section 3(3)(b) of the

Corporations Act, 1949.

16.His further submission is that before inclusion of the land in

question in the municipal area of the Corporation since the MRTP

Act, 1966 applied to the entire Municipal Corporation area hence,

by virtue of operation of Section 3(3)(b) of the Corporations Act,

1949, the MRTP Act, 1966 will apply to the subject la nd also

after its inclusion in the municipal area in terms of Section 3(3)

(a) of the Corporations Act, 1949 for the reason that such

provisions are applicable notwithstanding anything contained in

any other law which may be in force. His submission, in other

words, is that notwithstanding operation of MLRC, 1966 on th e

subject land prior to its inclusion in municipal area of respondent

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No.4 – Corporation, the provisions of MRTP Act, 1966 will be

applicable by operation of Section 3(3)(b) of the Corporations

Act, 1949 on its inclusion in the municipal limits of the

respondent No.4 – Corporation.

17.He has further submitted that Section 34 of the MRTP Act,

1966 provides for preparation of Development Plan for additional

area and accordingly on inclusion of this additional area, subject

land was part of which, within the municipal limits o f the

respondent No.4 – Corporation, the Development Plan was

prepared where the subject land has been reserved for t he

purpose of residence of the economically weaker section of the

society and accordingly, the character of the land in question as

Gairan land in terms of the provisions of the MLRC, 1966 wil l

have to give way to the land use as determined in terms of the

Development Plan prepared by respondent No.4 – Corporation

under Section 34 of the MRTP Act, 1966. Shri Kumbhak oni has

also drawn our attention to the provisions contained in Section

52(2) of the MRTP Act, 1966 which in an unambiguous term s

provides that the use of any land in contravention of th e

provisions of Development Plan attracts punishment and he nce,

on inclusion of the subject land within the municipal ar ea, if

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anyone uses the land as Gairan land which is contrary to the

purpose for which it is reserved under the Development Pl an

prepared under Section 34 of the MRTP Act, 1966 will att ract

penal provisions and therefore, the land in question cannot be

permitted to be used as

Gairan land.

18.Shri Kumbhakoni, in support of his submission, has cited

two judgments of this Court; Madhukar Sampatrao Patil &

Ors. Vs. State of Maharashtra & Ors.

1

and Municipal

Corporation of City of Thane Vs. Mukesh Ramful Gupta

2

.

19.Shri Khumbhakoni has also submitted that the instant

petition does not seek to espouse any public purpose as in the

vicinity of the subject land various housing projects have come

up and in case upon the subject land houses are constr ucted

under the PMAY which will be made available to economica lly

weaker section of the society at affordable rates, the developers

in the vicinity apprehend that the prices of the houses being

constructed by them shall fall steeply and thus this petition has

been filed to serve the cause of the developers in the area. His

contention is that to the contrary, the subject land has been

1

2019 SCC OnLine Bom 331

2

2018(3) Mh.L.J. 182

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allotted by the impugned order to respondent No.4 – Corporation

for a public purpose which is to provide affordable houses to the

economically weaker section of the society.

20.In light of the aforesaid submissions, it has been contended

by Shri Kumbhakoni that the impugned allotment order dated

18

th

June 2018 and consequential action of handing over

possession etc. do not call for any interference by this Court in

this petition and he, thus, urges that the petition may be

dismissed.

(F) Discussion:

21.Before delving into the submissions made by the learned

Counsel for the respective parties, it would be apposite to notice

certain statutory provisions.

Section 22A of the MLRC, 1966, which puts prohibition on

diversion or grant or lease of

Gairan land with certain exceptions

thereto, is extracted hereunder:

“22A. Prohibition on diversion of use of Gairan Land.—

(1) The land set apart by the Collector for free pasturage of village

cattle (hereinafter referred to as “the Gairan Land”) shall not be

diverted, granted or leased for any other use, exce pt in the

circumstances provided in sub-sections (2) or (3), as the case may

be.

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(2) The Gairan land may be diverted, granted or lease d for a public

purpose or public project of the Central Government or the State

Government or any statutory authority or any public authority or

undertaking under the Central Government or the Sta te Government

(hereinafter in this section referred to as “Public Authority”), if no

other suitable piece of Government land is available for such public

purpose or public project.

(3) The Gairan land may be diverted, granted or lease d for a

project of a project proponent, not being a Public A uthority, when

such Gairan land is unavoidably required for such project and such

project proponent transfers to the State Government , compensatory

land as provided in sub-sections (4) and (5).

(4) The compensatory land to be transferred to the St ate

Government under sub-section (3) shall be in the same revenue

village have area equal to twice the area of the Gairan land and its

value shall not be less than the value of the Gairan land so allotted

under sub-section (3) :

Provided that, the area of compensatory land shall have to be

suitably increased, wherever necessary, so as to make its value equal

to the value of the Gairan land so allotted under sub-section (3).

(5) The compensatory land to be transferred to the St ate

Government under sub-section (3) shall, notwithstandin g anything

contained in any other law, rule or orders made ther eunder, be

assigned by the Collector under section 22 for the use only of free

pasturage of village cattle or for grass or fodder reserve.

(6) The powers of diversion, grant, lease of Gairan land under this

section shall be vested in the State Government:

Provided that, notwithstanding anything contained in section

330A, the powers of the State Government under sub-s ection (3)

shall not be delegated to any officer or other authority sub-ordinate to

it.

Explanation .—

(a) For the purposes of this section, the term “publi c

purpose” shall have the same meaning as assigned to it in the

Right to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of

2013).

(b) The question whether or not such land is unavoid ably

required for a project under sub-section (3) shall be determined

by the State Government on the advice of the Divisi onal

Commissioner.

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(7) Notwithstanding anything in sub-sections (1) to (6) o r any

other provision of this Act, Gram Sabhas shall be c ompetent to

preserve, safeguard and manage Gairan land in Sched uled Areas:

Provided that, no Gairan land in the Scheduled Areas shall be diverted

or disposed of without the prior informed consent of the Gram Sabhas

concerned.

Explanation.— For the purposes of sub-section (7), the term

“Gram Sabha” shall have the same meaning as assigne d to it in

section 54-1A(b) of the Maharashtra Village Panchayat s Act (III of

1959).”

Section 40 which vests authority in the State Governme nt

to dispose of any Government land is also extracted

hereinbelow:

“40. Saving of powers of Government

—Nothing contained in any

provision of this Code shall derogate from the righ t of the State

Government to dispose of any land, the property of Government, on

such terms and conditions as it deems fit

.”

Section 3(3)(a) and 3(3)(b) of the Corporations Act, 1949

which read thus:

“Section 3 - Specification of larger urban areas and

constitution of Corporations.

(1) …………

(1A) …………

(2) ………..

(2A) …………

(3) (a) Subject to the provisions of sub-section (2), th e State

Government may also from time to time after consult ation with the

Corporation by notification in the Official Gazette, alter the limits

specified for any larger urban area under sub-sectio n (1) or sub-

section (2) so as to include therein, or to exclude therefrom, such

area as is specified in the notification.

(3) (b) Where any area is included within the limits of the 4 larger

urban area under clause (a), any appointments, notifications, notices,

taxes, orders, schemes, licences, permissions, rules, by-laws or forms

made, issued, imposed or granted under this Act or any other law,

which are for the time being in force in the 5[larger urban area] shall,

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notwithstanding anything contained in any other law for the time

being in force but save as otherwise provided in section 129A or any

other provision of this Act, apply to and be in force in the additional

area also from the date that area is included in the larger urban

area.”

Sections 34, 35 and 52(2) of the MRTP Act, 1966 are al so

relevant to be quoted which run as under:

“34. Preparation of Development plan for additional area:-

(1) If at any time after a Planning Authority has dec lared its

intention to prepare a Development plan or after a Development plan

prepared by a Planning Authority has been sanctioned, the jurisdiction

of the Planning Authority is extended by inclusion of an additional

area, the Planning Authority shall make a fresh dec laration of

intention to prepare a Development plan for the additional area; and

after following the provisions of this Act for the preparation of a draft

Development plan, 1[prepare a draft Development pla n and publish a

notice regarding its preparation], for such addition al area either

separately or jointly with the draft or final Development plan prepared

or to be prepared for the area originally under its jurisdiction, and

submit it to the State Government for sanction afte r following the

same procedure as is followed for submission of a draft Development

plan to the State Government :

Provided that, where a draft Development plan for the

additional area requires modification of the final Development plan or

where the State Government directs any such modific ation, the

Planning Authority shall revise the final Developme nt plan after

following the procedure laid down in section 38 so fa r as may be

relevant.

(2) Where any area is withdrawn from the jurisdiction of a Planning

Authority the proposals, if any, made for that area so withdrawn in a

Development plan shall also be deemed to be withdrawn therefrom.”

“35. Development plans sanctioned by State Government

before commencement of this Act :-

If any Planning Authority has prepared a Developmen t plan

which has been sanctioned by the State Government b efore the

commencement of this Act, then such Development pla n shall be

deemed to be final Development plan sanctioned under this Act.”

“52. Penalty for unauthorised development or for use

otherwise than in conformity with Development plan:

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(1) ………….

(2) Any person who continues to use or allows the use of any land

or building in contravention of the provisions of a Development plan

without being allowed to do so under section 45 or 47, or where the

continuance of such use has been allowed under the section continues

such use after the period for which the use has bee n allowed or

without complying with the terms and conditions under which the

continuance of such use is allowed, shall on conviction be punished

3[with fine which may extend to five thousand rupees]; and in the

case of a continuing offence, with a further fine which may extend to

one hundred rupees for every day during which such offence

continues after conviction for the first commission of the offence.”

22.Main plank of argument of Shri Anturkar, learned Seni or

Advocate representing the petitioners is that in terms o f the

provisions contained in Section 22A of the MLRC, 1966,

Gairan

land cannot be diverted or granted or leased for any other use

and since in this case

Gairan land has been allotted in favour of

respondent No.4 – Corporation for use of construction of houses

for economically weaker section, the same is illegal bein g

violative of the prohibition contained in Section 22A of the MLRC,

1966. It is his further submission that exception to prohibition

as carved out in sub Section (2) of Section 22A of the MLRC,

1966 will operate only with a pre-condition that

Gairan land may

be diverted or granted or leased for public purpose/project only

if no other suitable land of the Government is available for such

public purpose/project and in the instant case, there is nothing

on record to establish that any other Government land wa s

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available for the construction of houses for economically weaker

section under the PMAY. Thus, it is his contention that the

allotment was is unlawful.

23.However, the said submission of Shri Anturkar on behalf of

the petitioners has to be scrutinized keeping in mind w hat

Section 40 of the MLRC, 1966 provides for. The said submission

also needs to be tested on the legal proposition as argued by

Shri Kumbhakoni, learned Senior Advocate representing

respondent No.4 – Corporation that in view of the provisions of

Section 3(3)(a) and 3(3)(b) of the Corporations Act, 1949 on

inclusion of subject land within the municipal area of respondent

No.4 – Corporation, the provisions of the MRTP Act, 1966 a nd

the Development Plan sanctioned by the State Government

under Section 34/35 of the MRTP Act, 1966 will operate an d

therefore, any violation of the land use as determined by the

Development Plan prepared under Section 34/35 of the MRTP

Act, 1966 will not be permissible.

24.Section 40 of the MLRC, 1966 as extracted above, vest s

almost absolute right in the State Government to dispose of any

land or property of the Government on such terms and

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conditions as it deems fit. The language in which Section 40 is

couched leaves no room of doubt that the right of the Stat e

Government to dispose of any of its land or property is

irrespective of any provision of MLRC, 1966 for the reason of

opening phrase occurring in Section 40 is “nothing contained in

any provision of this Code”. Thus, we are of the opinion that by

operation of Section 40 of the MLRC, 1966, the State

Government is vested with right to dispose of any lan d of the

Government on such terms and conditions which are to be

determined by it irrespective of any other provision available in

MRLC, 1966 including Section 22A. Such, an interpreta tion of

Section 40 qua Section 22A of the MLRC, 1966 is based o n the

rationale that the Government is the absolute owner of its own

property and land and hence, putting any fetter on the right of

the Government to dispose of any property on the terms and

conditions to be determined by it, in our opinion, will not be

permissible and therefore, in the view of the Court,

notwithstanding the prohibition contained in Section 22A of the

MLRC, 1966, the Government still will have all the authority and

power to dispose of its land.

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25.It is further noticed that Section 3(3)(a) of the

Corporations act, 1949 permits the State Government to exclude

or include by way of alteration of limits to exclude or include any

area from the municipal limits by its alteration. Section 3(3)(b)

provides that in case any area is included within the municipal

limits of a Municipal Corporation by the State Government in

exercise of its powers available to it under Section 3(3 )(a),

various acts, such as appointments, notifications, notices, taxes,

orders, schemes, licenses, permissions, rules, bye-laws e tc.

made or issued or imposed or granted under the Corporations

Act, 1949 or any other law for the time in force, shall apply to

and be in force in the additional area also from the date of its

inclusion in the municipal limits under Section 3(3)(a). T he

relevant phrase occurring in Section 3(3)(b) is various acts done

under “this Act” that means the Municipal Corporations A ct or

“any other law”. Thus, any act of the Municipal Corpora tion

referable to MRTP Act, 1966 will be covered by the phrase “any

other law” occurring in Section 3(3)(b) of the Corporations Act,

1949. Since the Development Plan for the additional area is

prepared by the Corporation with the sanction of the State

Government under Section 34/35 of the MRTP Act, 1966,

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therefore, such a Development Plan will apply to and shall be in

force in respect of the additional area as well. Meaning thereby,

such Development Plan will apply to the subject land for the

reason that the subject land was included in the municipal area

of respondent No.4 by the State Government vide its notification

dated 11

th

September 1997.

26.The land use prescribed in the Development Plan prepared

by respondent No.4 in respect of subject land under Section

34/35 of the MRTP Act, 1966 will operate and apply and w ill

over-ride the use of the subject land as

Gairan land also keeping

in view the provisions contained in Section 52(2) of the M RTP

Act, 1966. The reason for such application of Development Plan

is that Section 52 of the MRTP Act, 1966 provides that a ny

person who contravenes the provisions of the Development Pla n

invites certain penal consequences. Thus, if user of any land

before its inclusion in the Municipal Corporation was other than

the user prescribed in the Development Plan prepared by th e

Municipal Corporation, after its inclusion in the municipal limits,

earlier user is impermissible and such use has penal

consequences. Therefore, we conclude that the user of the land

as per the prescription of the Development Plan prepared under

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Section 34/35 of the MRTP Act, 1966 in respect of the additional

area will prevail over the land use of the land in the additional

area which was in existence prior to inclusion of the additional

area within the municipal limits of the Municipal Corporation.

27.For the reasons aforesaid, we do not find that the Collector,

while granting the subject land to respondent No.4 – Corporation

for a public project of constructing houses for economically

weaker section of the society under the Central Governm ent

Scheme (PMAY) has committed any illegality or contravened any

statutory provision. We are, thus, not persuaded to interfere in

the impugned order of allotment.

28.There is yet another reason which dissuades us from

interfering in the impugned allotment order dated 18

th

June 2018

and other consequential actions on behalf of the State

authorities and the reason can be found in the purpose for which

impugned allotment of land has been made. It is not in dispute

that the impugned order allotting the land to respondent No.4 –

Corporation has been passed by the Collector for the subject

land being utilized for a public purpose under the Central

Government Scheme viz. PMAY for providing affordable housin g

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to the economically weaker section of the society. Accordingly,

since the impugned allotment has been made for achieving a

larger public interest and public purpose, we do not find

ourselves in agreement with the submissions made by

Shri Anturkar, learned Senior Advocate representing th e

petitioners who insisted for interfering in the impugned allotment

order and other consequential actions.

29.So far as the submission made by Shri Anturkar, that th e

Collector, while passing the impugned allotment order, has

surrendered his discretion to the diktats of the Stat e

Government is concerned, we do not find any force in th e said

submission.

30.As already observed above, the State Government is

vested with almost absolute power to dispose of any land o r

property of the Government on the terms and conditions to be

determined by it. A perusal of the impugned order shows th at

the State Government, in the Department of Revenue an d

Forest, vide its letter dated 26

th

April 2018, only informed the

Collector that the Government had received a proposal to

transfer the subject land to respondent No.4 – Corporation for

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developing the houses under the PMAY for economically weake r

section. By the said letter dated 26

th

April 2018 the State

Government only directed that the Collector should take

appropriate decision at his level regarding providing subject land

to respondent No.4 – Corporation on appropriate terms or on

such terms and conditions as the Collector may deem it

appropriate, for the purposes of constructing houses for

economically weaker section and low income group beneficiar ies

under the PMAY. Thus, what was provided for by the State

Government in its letter dated 26

th

April 2018 was that on the

proposal to transfer the subject land in favour of respo ndent

No.4, “the Collector should take appropriate decision at his

level”. Therefore, the contents of the letter dated 26

th

April 2018

of the State Government cannot be termed, in any manner , as

any kind of the diktat to the Collector; rather the Collector was

only asked to consider the proposal and take decision at hi s

level, meaning thereby the discretion of the Collector was not

taken away by the State Government. In our opinion, the letter

dated 26

th

April 2018 of the State Government cannot be

construed to mean that the same contained any kind of diktat

from the State Government which would have compelled the

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Collector to surrender his discretion.

31.In view of the discussion made above, we conclude that no

interference in the impugned order of allotment passed by t he

Collector, dated 18

th

June 2018 allotting subject land in favour of

respondent No.4 – Corporation and also in the consequential

actions is called for by the Court in exercise of its extra ordinary

jurisdiction under Article 226 of the Constitution of India.

32.Resultantly, the petition fails, which is hereby dismissed.

33.Costs made easy.

34.Interim application(s), if any, stands disposed of.

(AMIT BORKAR, J.) (CHIEF JUSTICE)

35.After pronouncement of the judgment, learned Counsel for

the petitioners prays that interim order passed by the Court on

3

rd

September 2020 may be extended for four weeks.

36.However, in view of the reasons given by the Court

dismissing the writ petition, we are unable to accede to the said

prayer, which is refused.

(AMIT BORKAR, J.) (CHIEF JUSTICE)

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