http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

CASE NO.: Appeal (civil)  4309 of 2007

PETITIONER: City and Industrial Development Corporation of Maharashtra & Anr

RESPONDENT: Ekta Mahila Mandal & Anr

DATE OF JUDGMENT: 17/09/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.  4309        OF 2007 (Arising out of S.L.P. (C) No.842 of 2005)

Dr. ARIJIT PASAYAT, J.

1.      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 Industrial Development  Corporation of Maharashtra  (in short the ’CIDCO’) to consider  respondent No.1’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.  

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 interested in social  service particularly for creating opportunities for children from  lower income groups formed a society called "Ektha Mahila  Mandal" in 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.1, there  was an open plot and the respondent no.1 constructed two  rooms along with one toilet block and the remaining land was  used as a playground for the students. Prayer in the writ  petition as noted above was for a direction to allot the same  plot in favour of respondent no.1 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 that another plot in N-7 Sector-1 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

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. 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 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 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 ’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 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 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  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 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.1.

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 areas under the development plan has to be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

under the Act.  Article 21A of the Constitution cannot come to  aid to respondent No.1. 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 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 relevant as the construction was made in a  land reserved for park in residential colonies.  The allotment of  the land of the Delhi Development Authority was 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  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.