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(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 Basavraj Page|8 3098.21-wp (1).docx 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 permits 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 18th 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 Basavraj Page|9 3098.21-wp (1).docx purposes in the Development Plan prepared under the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as the MRTP Act, 1966), as such it was not necessary to comply with the provisions of Section 22A of the 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 challenging the impugned allotment order dated 18th June 2018, is that the Collector has abdicated his discretion and has acted on the diktat Basavraj Page|10 3098.21-wp (1).docx of the State Government in the Department of Revenue and 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 discretion 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 independent 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.

24. Section 40 of the MLRC, 1966 as extracted above, vests almost absolute right in the State Government to dispose of any land or property of the Government on such terms and Basavraj Page|23 3098.21-wp (1).docx conditions as it deems fit. The language in which Section 40 is couched leaves no room of doubt that the right of the State 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 land 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 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.