Bombay High Court Upholds Allotment Of 'Gairan' Land For Construction Of Housing Under Prime Minister Awas Yojana

The Division Bench of Chief Justice Devendra Kumar Upadhyaya and Justice Amit Borkar was considering the petitioners' challenge to the District Collector's order, where a piece of land at Mauje Ravet, Taluka Haveli, Pune District was allotted to Pimpri Chinchwad Municipal Corporation (respondent no. 4) for development of affordable housing under the scheme of Prime Minister Awas Yojana (PMAY).

The petitioners contended that in view of the prohibition on diversion of use of Gairan land under Section 22A of the MLRC Act, the allotment of the land by the Collector to the respondent corporation was illegal. Section 22A provides that the gairan land, which is the land set apart by the Collector for free pasturage of village cattle, cannot be diverted, granted or leased for any other uses. One of the exceptions for diverting gairan land is if it is used for a public purpose or public project of a Central or State Government, or public or statutory authority.

On the other hand, the State/respondent authorities contended that the said land was allotted for a public purpose/public project and that Section 22A(2) of MLRC allows even gairan land to be diverted for a public purpose of the Central or State Government.

The Court referred to Section 40 of MLRC, which empowers the State government to dispose of any government land or property. The provision reads “Nothing contained in any provision of this Code shall derogate from the right of the State Government to dispose of any land, the property Government, on such terms and conditions as it deems fit.”

The Court noted that Section 40 vests 'almost absolute right' on the State government to dispose of any land or property.

It remarked that the non-obstante clause in Section 40 leaves no room for doubt that the State Government can dispose of any of its land or property irrespective of any provision of MLRC.

It thus stated that the right of the State government to dispose of any land under Section 40 will apply irrespective of the prohibition contained in Section 22A.

It noted that such an interpretation is based on the rationale that the government is absolute owner of its property and land. It opined that putting any restrictions on such right of the government would not be permissible.

“Such, an interpretation of Section 40 qua Section 22A of the MLRC, 1966 is based on 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.”

The Court also referred to Section 52 of the Maharashtra Regional and Town Planning Act (MRTP), 1966 (MRTP Act), which penalizes any unauthorized development or use of land in contravention of Development Plan. The Court thus stated that due to penal consequences under Section 52 of the MRTP Act, the Development plan prepared by the respondent-Corporation act overrides the use of the land as Gairan land.

“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 will over-ride the use of the subject land as Gairan land also keeping in view the provisions contained in Section 52(2) of the MRTP Act, 1966. The reason for such application of Development Plan is that Section 52 of the MRTP Act, 1966 provides that any person who contravenes the provisions of the Development Plan 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 the Municipal Corporation, after its inclusion in the municipal limits, earlier user is impermissible and such use has penal consequences.”

The Court further stated that as the land for being used for public purpose under the Central Government Scheme of PMAY, the allotment was used for a 'larger public interest and public purpose.'

The Court thus held that granting the land to the Corporation was not illegal and dismissed the petition.

Case title: Santosh Madhukar Bhondve & Ors. vs. State of Maharashtra & Ors. (WRIT PETITION NO.3098 OF 2021)