*1* wp.253.11.14.sxw kps HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.253 OF 2011 Kherwadi Social Welfare Association. ..Petitioner -Versus- State of Maharashtra and others. ..Respondents ........ Mr.Mukesh Vashi a/w Ms.Prachi Khandge, Mr.Makarand Kale and Mr.Abhishek Bharati i/b M/s M.P.Vashi and Associates, for the Petitioner. Ms.Geeta Shastri, AGP, for Respondent Nos.1 to 3/State. ......... CORAM:- S.C.DHARMADHIKARI, J. Date: 29th August, 2011. P.C.:- 1 This Writ Petition is directed against the order passed on 30.09.2010 (Annexure-T to the petition) passed by the Minister for Revenue, so also, a further order passed by the Principal Secretary, Department of Revenue & Forest, Government of Maharashtra on 30.06.2011. 2 The Petitioner is a public charitable trust. It claims that it is working for underprivileged sections of the society. It has undertaken various projects for benefit of such sections and for their upliftments. The Respondent No.1 State of Maharashtra had granted a piece or parcel of the land admeasuring about 5808 sq.yards. to the Petitioner out of Plot No.1 Survey No.341, in terms of the allotment letter dated 24.09.1956. The plot of land was allotted for establishment of match stick unit. The Petitioner’s case is that this plot is situate at Kherwadi, Bandra and in terms of all conditions that have been imposed while allotting the same, the land has been utilized. It has been pointed out that as far as the *2* wp.253.11.14.sxw Petitioner is concerned, it is not that it has to set up only match stick unit, but it is also permitted to use the plot to carry on such village industries scheme as sponsored by the Bombay Suburban District Village Industries Association and/or All India Khadi & Village Industries Association. It is contended that on 24.07.1984, a show cause notice was issued by the Additional Collector, Mumbai Suburban District calling upon the Petitioner to show cause as to why the land should not be resumed to the Government without payment of compensation because the Petitioner has committed breach by not using the land for the purpose for which it was allotted. In the show cause notice, it was alleged that there is one small “pakka” structure and the remaining part of land is not used for any purpose. The structure is locked and match stick unit is not functioning at all. In such circumstances, why the land should not be resumed to the Government; was the action that was proposed against the Petitioner. 3 This show cause notice was replied by the Petitioner by reply dated 27.08.1984 pointing out that the match stick unit was functional and it is incorrect to say that the land was not being utilized for the purpose for which the same came to be allotted. It was contended that the Petitioner has utilized the land and intended to utilize the same by expanding its activities. The activities now to be undertaken would include those in consonance with the scheme sponsored by the Bombay Suburban District Village Industries’ Association and the All India Khadi & Village Industries. Certain self employment schemes so as to empower the persons belonging to the weaker sections of the society have to be undertaken. The land was not allowed to be utilized for anything else. In fact the Bombay Municipal Corporation (BMC) has constructed the compound wall by encroaching on the land. The unauthorized *3* wp.253.11.14.sxw construction that has been made was also sought to be removed and the steps are being taken in that behalf. 4 The Government was not satisfied with this response and therefore, it passed an order of resumption on 04.09.1984. Upon receipt of that order, an appeal was preferred before the Additional Commissioner, Konkan Division, Mumbai which appeal also met with dismissal on 14.08.1985. 5 Thereafter, the possession was sought to be taken physically from the Petitioner and that is how the Petitioner approached this Court by filing Writ Petition No.153/1986 which was admitted and the interim relief was also granted on 07.02.1986. However, on 05.01.1991, upon noticing that the Petitioner has preferred an appeal to the State Government and that appeal is yet to be decided, that this Court disposed of the Writ Petition No.153/1986 with a direction that the appeal be heard and decided finally. 6 Accordingly, it was contended that there is complete change in scenario and the appeal was not decided for more than 24 years. In the meanwhile, the activities of the Petitioner were taken forward and there was expansion in the same. The nature of activities has been pointed and it has been stated that the same has been appreciated by all concerned authorities. Even the then President of India paid a visit to the centres of the Petitioner and appreciated the works and activities undertaken by the Petitioner. In these circumstances, after 24 years of the show cause notice, an order has been passed by the State Government and particularly by the Revenue Minister directing that the land be resumed to the Government *4* wp.253.11.14.sxw and it’s possession should be taken forthwith. Certain directions have been issued in terms of this order dated 30.09.2010. It is this order which is challenged in this Writ Petition. 7 In the light of the subsequent developments and particularly, highlighting that the Petitioner Association has earned accreditation from the Ministry of Labour and Employment of the Central Government and the Technical Board of the Government of Maharashtra as its Authorised Training Agency under the agies of Department of Industries, Government of Maharashtra and the Department of Employment and Self Employment, Government of Maharashtra; that on 09.02.2011 I directed after hearing both sides that the State Government should reconsider the request made by the Petitioner. It was pointed out that the order passed by the Division Bench of this Court permitted the Petitioner to raise appropriate pleas not only to impugn the order of the Appellate Authority, but also to present the scheme to enable the Government to take a decision whether, to continue the allotment in favour of the Petitioner on certain additional terms and conditions or not. My attention was invited to several documents in that behalf. 8 In the light of this direction, the Petitioner appeared before the Principal Secretary, Revenue & Forest Department, State of Maharashtra, who by the impugned order held that earlier decision does not require any modification or change as the Petitioner could not satisfy him that the land at Bandra would be required for the activities of the centres run by the Petitioner. The Principal Secretary has placed reliance on the report of the Collector forwarded vide communication dated 14.02.2011. It is this conclusion which is now assailed before me. *5* wp.253.11.14.sxw 9 Mr.Vashi, learned counsel appearing for the Petitioner, submits that the Principal Secretary was in complete error inasmuch as he has not referred to the documents that have been produced and essentially the scheme of the Central Government. Mr.Vashi submits that the conclusion that the Petitioner has failed to make proper use of the land is incorrect because the purpose of allotment of the land as vocational training centre therein is not doubted. The term “activities relating to village industries” is a broad term and it cannot be interpreted to exclude vocational training centres. The various types of vocational training courses imparted by the Petitioner Association are required as much for village industries and for industries in towns and cities. Mr.Vashi has invited my attention to the letter dated 01.11.1957 and the stipulations therein that the Petitioner is allowed to use the land for the schemes sponsored by the Bombay Suburban District Village Industries Association and the All India Khadi and Village Industries. The term “service industry” squarely covers the activity of vocational training. The service industry is an industry which provides the services instead of goods. The training institutes like the Petitioner are service industries and therefore, it is not as if there was no usage as alleged. In fact due to pendency of the present proceedings and there being uncertainty, the Petitioner could not present the comprehensive scheme, but it should be given an opportunity to do so and utilize the land in terms of the letter of allotment. 10 On the other hand, Ms.Shastri, learned AGP appearing for the Respondents/State, submits that no more opportunity be given to the Petitioner because the Government in terms of the directions of this Court *6* wp.253.11.14.sxw re-examined and re-considered all the proposals and requests including challenge to the earlier orders. However, even subsequent developments which are placed on record and particularly, the report of the Collector would go to show that there is no utilization of the allotted land for the purpose for which it was allotted. In fact from 1956 till 1984 and from 1984 till date, there has been no change in the scene. Large portion of the land is now notified in the Development Plan for various public purposes. There is D.P. road and only portion which is without any reservation is admeasuring 2140.83 sq.mtrs.. Thus, out of total land which admeasures 4803.35 sq.mtrs., only this portion is under the allotment and there is old dilapidated structure which is locked. The land surrounding the same is not being used and in fact there is likelihood that unauthorized persons may use the land by encroaching on the same. For all these reasons, this is not a fit case for interference in writ jurisdiction and the petition be dismissed. 11 With the assistance of the learned counsel appearing for the parties, I have perused the petition and all annexures thereto including the affidavits and further affidavits filed by the parties. I have also perused the earlier orders and also the order in terms of the directions issued on 09.02.2011. 12 The affidavit in reply filed by the State which encloses not only the order of the Principal Secretary, but other material also, would show that the land Survey No.341 CTS No.589 situate at Kherwadi, Bandra, Mumbai Suburban district is a Government land. It admeausres 4803.35 sq.mtrs.. There is reservation for hospital and gynecology cum maternity clinic of the Bombay Municipal Corporation to the extent of *7* wp.253.11.14.sxw 2034.74 sq.mtrs.. The portion admeasuring 627.65 is D.P. road and unreserved portion is admeasuring 2140.83 sq.mtrs.. As far as that portion is concerned, the Collector forwarded the report to the Principal Secretary on inspection. The Principal Secretary found that the Petitioner Association has utilized only small portion of the land by putting up a structure on the land admeasuring 311.6 sq.mtrs.. This structure is kaccha structure. There is cement roof. This is hut like structure. Just adjacent to this structure, there is a unit and workshop for making furniture from the old wood. There is nothing in surrounding area and that is being used for open defecation by people residing in the vicinity. As far as the total land is concerned, the Bombay Municipal Corporation has taken the possession of 370 sq.mtrs. of area and from that portion, 164 sq.mtrs. is utilized by constructing a public toilet. As far as the remark on the D.P. plan is concerned, it reflects that the land is reserved for maternity home and hospital of the Corporation. The total requirement for this purpose, as also, for D.P. road is 2439.2 sq.mtrs.. The balance portion is 2394.1 sq.mtrs.. However, as far as the Petitioner is concerned, the land has not been utilized by the Petitioner for last more than 54 years. It is lying un- utilized. Barring the old dilapidated structure, there is absolutely no work carried out nor the land is put to any use by the Petitioner. Large portion of the land is being used by public for open defecation. Because of this, there is foul smell and lack of cleanliness and hygiene in the area. That has caused inconvenience to the persons residing in the vicinity. When such is the report which has been forwarded to the Principal Secretary, I do not see as to how he is prohibited from taking into account the same. Ms.Shastri was, therefore, right in arguing that the Petitioner may have established several centres in or around Mumbai city and their activities are indeed in public interest, however, as far as the subject land is *8* wp.253.11.14.sxw concerned, there is no material produced by the Petitioner either before this Court or before the authorities even at subsequent stages, to show that they have put it to use for any welfare and beneficiary scheme. The report of the Collector would go to show that even in 2011 despite being given several opportunities by this Court, the Petitioners have been unable to point out that they have utilized the entire land or substantial portion of the same at any point of time. While it is true that the match stick unit may not be feasible activity any longer, yet in terms of the several schemes of the Central and State Government, the Petitioners could have pointed out any scheme or work which is being undertaken and implemented by them on the land in question. Despite all opportunities being given, the Petitioners are unable to do so. In the light of the same and if the order of the Principal Secretary is read in its entirety, I do not see any case being made for interference in writ jurisdiction. The order of the Principal Secretary and the Revenue Minister passed earlier are both in consonance with the material produced on record and there is no error of law apparent on the face of record or perversity therein. 13 As a result of the above, the Writ Petition fails and it is, accordingly, dismissed. No costs. 14 However, it is directed that in terms of the order of the Revenue Minister and the Principal Secretary, so also, the applicable rules and regulations, the State Government will ensure that the land is free from encroachment and any unauthorized user. The land must be utilized for public purpose in terms of the applicable policies and rules. The land must be dealt with in accordance with law. The Respondents will, therefore, have to abide by these directions which are issued by the *9* wp.253.11.14.sxw Revenue Minister, as also, the Principal Secretary as if they form part and parcel of this order. 15 At this stage, Mr.Vashi, learned counsel appearing for the Petitioner, prays that ad-interim order granted by this Court on this Writ Petition be continued for a reasonable period so as to enable the Petitioner to challenge this order in a higher court. This request is opposed by Ms.Shastri. 16 After considering the entire material on record and finding that for more than 57 years, the land has not been utilized for the purpose for which the same has been allotted, this is not a fit case for continuation of the ad-interim order any further. The request in that behalf is refused. 17 The Writ Petition is dismissed. No costs. (S.C. Dharmadhikari, J)