CITY AND INDUSTRIAL DEVELOPMENT CORPORATION OF MAHARASHTRA AND ANR.versusEKTA MAHILA MANDAL AND ANR.

-
...         CITY AND INDUSTRIAL DEVELOPMENT CORPORATION OF
                         MAHARASHTRA AND ANR .
                                             v.
                                                                                        A


                        EKTA MAHILA MANDAL AND ANR.

                                 SEPTEMBER 17, 2007
                                                                                        B
                     (DR. ARIJIT PASAYA T AND D.I(. JAIN, JJ.]



            Town Planning-Encroachment on plot of CJDCO-By a charitable
      Trust-Regularisation thereofsought-For running primary school-Denied-
      On the ground that the land was reserved as green belt-High Court directing
                                                                                        c
      regularization in view of the fact that Primary education was a fundamental
      right-On appeal, held: Merely because Article 21 A of the Constitution has
      treated primary education as a fundamental right, that does not confer right
      to seek regularization of encroachment on the ground of running a primary
      school thereon-Plot was reserved for green belt-There is no policy for D
      regularization of such area-Constitution of India, 1950-Article 2/A-
      Maharashtra Regional Town Planning Act, 1966.
  "         Appellant, a charitable trust started a Balakwadi for children. In the
      land adjacent to the Balakwadi, the Trust made some constructions. It sought
      for regularization of the said plot. CIDCO denied the same on the ground          E
      that it was resen'ed as green belt and that lower level tree plantation has
      already been done thereon.

            Respondent filed Writ Petition seeking direction to allot the plot in its
      favour. High Court appointed a Local Commissioner who in his report stated
      that land in question was earmarked as green belt. High Court allowed the         F
      petition directing regularization of the land in favour of the respondent and
      holding that the plot was not a green belt and regularization was necessary
      in view of Article 21A of the Constitution of India, making primary education
      a fundamental right. Hence the present appeal.
                                                                                        G
            Allowing the appeal, the Court

            HELD: Local Commissioner's report pointed out that the land in question
      was earmarked as a green belt. It is the stand of the CIDCO that lower level
~'    tree plantation has already been done and the balance work is being carried
                                          1077                                          H
    1078                   SUPREME COURT REPORTS                     [2007] 9 S.C.R

A   on in a systematic manner. There is no policy for regularization and as such
    any change in the reserved area and earmarked areas under the development
    plan has to be under Maharashtra Regional Town Planning Act, 1966. Article
    21A of the Constitution oflndia, cannot come to aid to respondent No;l. What
    was essentially sought for by the direction was regulari7.ation of unauthori7.ed
B   construction. In essence what the High Court has directed is to regularize
    an unauthorised occupation and regulari7.ation of unauthorised encroachment
    Merely because Article 21A of the Constitution has treated primary education
    as a fundamental right, that does not confer any right on an encroacher to
    seek regularization of encroachment on the ground that ultimately some
    children of the particular age group would be taught in the school.
C                                                           [Para 7) (1080-E, F, GJ

         Dr. G.N. Khajuria and Ors. v. Delhi Development Authority and Ors.,
    (1995) 5 sec 762, relied on.

           CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4309 of2007.
D
          From the Judgment and Order dated 6.04.2004 of the High Court of
    Judicature at Bombay, Bench at Aurangabad in Writ Petition No. 351 of2003.

           A.S. Bhasme for the Appellants.

E          The Judgment of the Court was delivered by

           DR. ARIJIT PASAYAT, J. I. Leave granted.

          2. Challenge in this appeal is to the order passed by a Division Bench
    of the Bombay High Court at Aurangabad directing appellant-City and
F   Industrial Development Corporation of Maharashtra (in short the 'CIDCO') to
    consider respondent No. I's case for regularization of the existing plot
    admeasuring 770 Sq. mtrs., located at N-7 Sector and on regularization to
    accept the consideration at the rates prevailing in 1981 for the plots reserved
    for educational facilities. It was held that CIDCO's stand that the said .plot is
    a green belt cannot be accepted.
G
           3. Factual background in nutshell is as follows:

          A writ petition was filed by the respondent No. 1 for a direction to the
    appellants to regularize a plot of land which was claimed to be under its
    possession. In the writ petition it was stated that a group of house wives
H   interested in social service particularly for creating opportunities for children
'r



        CITY AND INDUS. DEVE. CORP. v. EKTA MAHILA MANDAL [PASAYAT, J.] 1079

     from lower income groups formed a society called "Ektha Mahila Manda!" in A
     the N-7 Sector of CIDCO. Subsequently, it was registered under the Bombay
     Public Trust Act, 1950 (in short the 'Trust Act') as a charitable trust and they
     started a Balakwadi for the children coming from the lowest income groups.
      Adjacent to the balakwadi of respondent no. I, there was an open plot and
     the respondent no. I constructed two rooms along with one toilet block and
     the remaining land was used as a playground for the students. Prayer in the B
     writ petition as noted above was for a direction to allot the same plot in favour
     of respondent no. I for educational purposes. Appellants filed its reply and
     submitted that the plot admeasuring 770 Sq. mtrs. located in N-7 Sector and
     on the portion of which the constructions have been made is reserved as a
     green belt and it cannot be allotted to the writ petitioner. It was pointed out C
     that another plot in N-7 Sector- I was available ·which admeasures about 2186
     Sq. mtrs. and was reserved for primary school and the writ petitioner was
      informed about these factors. However, before CIDCO proceeded to invite
     application for allotment of this plot, a section of the society resorted to
     agitations, demonstrations, hunger strike and demanded that the portion of
     the. plot was reserved for Budha Vihar, it could not be allotted to any one else. D
     Under these circumstances, CIDCO could not proceed further to consider the
     application for alternative plot.

            4. Stand of the writ petitioner was that though in records the plot in
     question was stated to be reserved for green belt, in reality only a few trees E
     existed. It was, therefore, stated that the High Court should direct allotment
     of the plot to the writ petitioner. The High Court appointed a Court
     Commissioner to visit the land and submit a report. According to the report,
     the area fenced by the writ petitioner measured 770 Sq. Mtrs. The High Court
     felt that it was not sufficient to treat it as a green belt. In the two rooms
     constructed, students were being taught in shift basis and the atmosphere F
     was very clumsy and unhygienic. The sections were being run at three
     different places. One section of the school was running in House No.68,
     Sector G-7 in N-7 and the third section was being run in the nearby hall called
      "Comrade Deshpande Social Facility Hall". The High Court felt that after
      insertion of Article 21A of the Constitution of India, 1950 (in short the G
     'Constitution'), primary education to the children is a matter of fundamental
     right. Since the writ petitioner was running a school, it is necessary that
     CIDCO should regularize the entrusted plot. Writ petitioner stated that it
     needed to construct about 8 to 12 class rooms, a toilet block separately for
     the male and female children, Office for the Head Mistress, staff room, a
     laboratory and Library and it proposes to build up a multi-storeyed structure H
    1080                   SUPREME COURT REPORTS                    (2007] 9 S.C.R

A   so that the major portion of the land would remain open for plantation of trees
    on the boundary and for being used as playground. Therefore, the direction
    as noted above was given.

          5. According to learned counsel for the appellants the High Court could
    not have given direction for regularization of encroachment of a part of the
B   land which was notified as a green belt area under the development plan.
    CIDCO is the Special Planning Authority under Section 40 of the Maharashtra
    Regional Town Planning Act, 1966 (in short the 'Act'). The subject area has
    been notified as a green belt under the development plan. Sweeping directions
    have been given not only to regularize the encroachment in the green belt but
C   also to allot the said plot of land at concessional rate at the rate prevailing
    in 1981. It is pointed out that CIDCO has no policy to regularize encroachments,
    more particularly, in areas earmarked for a green belt. The reservation for
    green belt notified under the development plan has statutory force. Though
    in connected proceedings the High Court itself had directed the authorities
    to remove encroachment on public roads and open plots also included the
D   encroachment in garden tracks, pathway and service lines etc., a departure
    was made in this case. There is no scope for the writ petitioners taking shelter
    under Article 21A of the Constitution.

           6. There _is no appearance on· behalf of the respondent No. I.

E          7. It is to be noted that Local Commissioner's report pointed out that
    the land in question was earmarked as a green belt. It is the stand of the
    CIDCO that lower level tree plantation has already been done and the balance
    work is being carried on in a systematic manner. There is no policy for
    regularization and as such any change in the reserved area and earmarked
F   areas under the development plan has to be under the Act. Article 21A of
    the Constitution cannot come to aid to respondent No. I. What was essentially
    sought for by the direction was regularization of unauthorized construction.
    In essence what the High Court has directed is to regularize an unauthorised
    occupation and regularization of unauthorised encroachment. Merely because
    Article 21A of the Constitution has treated primary education as a fundamental
G   right, that does not confer any right on an encroacher to seek regularization
    of encroachment on the ground that ultimately some children of.the particular
    age group would be taught in the school. In Dr. G.N. Khajuria & Ors. v. Delhi
    Development Authority & Ors., (1995] 5 SCC 762 it was held that merely
    because some structures of permanent nature had been constructed is not
H   relevant as the construction was made in a land reserved for park in residential
  CITY AND INDUS. DEVE. CORP. v. EKTA MAHILA MANDAL [PASAYAT, J.]          1081

colonies. The allotment of the land of the Delhi Development Authority was         A
held to be illegal and the same was considered to be misuse of power and
was illegal. The High Court has also not indicated any reasons as to why the
allotment was to be done at concessional rate at the rate prevailing in the year
1981. Though this aspect loses relevance in view of the conclusion that the
High Court's view is not sustainable, yet this adds to the vulnerability of the    B
High Court's order.

      8. Looked at from any angle, the High Court's order is unsustainable
and is set aside.

      9. The appeal is allowed, but without any order as to costs.
                                                                                   c
K.KT.                                                          Appeal allowed.