Bombay High Court
Basil Barnes And Anr vs The Union Of India And 5 Ors And Janardhan ... on 23 January, 2017
Author: S.C. Dharmadhikari
Bench: S.C. Dharmadhikari, B.P. Colabawalla
OSWPL3254.16.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 3254 OF 2016
1. Mrs. Asha S. Shikhare & Ors. ... Petitioners
Vs
1. The State of Maharashtra & Ors. ... Respondents
WITH
CHAMBER SUMMONS (L) NO. 6 OF 2017
IN
WRIT PETITION (L) NO. 3254 OF 2016.
1. Shri Basil Barnes & Anr. ... Applicants
In the matter between :
1. Mrs. Asha S. Shikhare & Ors. ... Petitioners
Vs
1. The State of Maharashtra & Ors. ... Respondents
WITH
WRIT PETITION NO. 1397 OF 2016
1. Shri Basil Barnes & Anr. ... Petitioners
Vs
1. The Union of India & Ors. ... Respondents
WITH
NOTICE OF MOTION NO. 312 OF 2016
IN
WRIT PETITION NO. 1397 OF 2016
1. Shri Basil Barnes & Anr. ... Applicants
In the matter between :
1. Shri Basil Barnes & Anr. ... Petitioners
Vs
SRP 1/22
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OSWPL3254.16.doc
1. The Union of India & Ors. ... Respondents
WITH
NOTICE OF MOTION NO. 308 OF 2016
IN
WRIT PETITION NO. 1397 OF 2016
1. Shri Basil Barnes & Anr. ... Applicants
In the matter between :
1. Shri Basil Barnes & Anr. ... Petitioners
Vs
1. The Union of India & Ors. ... Respondents
WITH
NOTICE OF MOTION NO. 299 OF 2016
IN
WRIT PETITION NO. 1397 OF 2016
1. Shri Basil Barnes & Anr. ... Applicants
In the matter between :
1. Shri Basil Barnes & Anr. ... Petitioners
Vs
1. The Union of India & Ors. ... Respondents
WITH
CHAMBER SUMMONS (L) NO. 392 OF 2016
IN
WRIT PETITION NO. 1397 OF 2016
1. Janardhan Shantaram Dhadse & Ors. ... Applicants
In the matter between :
1. Shri Basil Barnes & Anr. ... Petitioners
Vs
1. The Union of India & Ors. ... Respondents
SRP 2/22
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OSWPL3254.16.doc
WITH
NOTICE OF MOTION (L) NO. 737 OF 2016
IN
WRIT PETITION NO. 1397 OF 2016
1. Shri Basil Barnes & Anr. ... Applicants
In the matter between :
1. Shri Basil Barnes & Anr. ... Petitioners
Vs
1. The Union of India & Ors. ... Respondents
Ms. S.G.P. Barnes Petitioner No.2 in WP 1397 of 2016 - present.
Mr. R.G. Panchal with Mr. Vijay S. Kurle for the Petitioner in WPL
3254 of 2016.
Mr. Chetan Chandulal Agarwal for Respondent Nos.1 to 5 in WP
No.1397 of 2016 and for the Respondent Nos.5 & 6 in WPL 3254
of 2016.
Mr. A.I. Patel, Addl. Govt. Pleader for the Respondent Nos.1 and 2
- State in WPL 3254 of 2016.
Mr. A.L. Patki, Addl. Govt. Pleader for the Respondent No.6 -
State in WP 1397 of 2016.
CORAM : S.C. DHARMADHIKARI &
B.P. COLABAWALLA, JJ.
MONDAY, 23RD JANUARY, 2017
ORAL JUDGMENT : [Per S.C. Dharmadhikari, J.]
1 The petitioners in Writ Petition (L) No. 3254 of 2016, seek a declaration that they are protected occupiers under the SRP 3/22 ::: Uploaded on - 01/02/2017 ::: Downloaded on - 27/08/2017 14:09:45 ::: OSWPL3254.16.doc Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (for short "The Slum Act"), They cannot be evicted from the premises belonging to the Railways and by invoking the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (for short "PP Act").
2 Though this writ petition contains such prayers, what we have found from the pleadings is that the petitioners are seeking to impugn a substantive order and direction of this Court and issued in a petition which was filed by a public spirited citizen. That Writ Petition No.1397 of 2016 is also listed before us and the order dated 24th October, 2016, passed therein is sought to be recalled.
3 The petitioners state that the mandate of Article 21 of the Constitution of India enables them, even though they are squatters and encroachers on the property of the Western Railway, to urge that there is a constitutional obligation and duty of the State of Maharashtra to rehabilitate them. The petitioners rely upon the Slum Act. It is stated in the writ petition and relying upon the provisions of Chapter I-A and I-B which contains several SRP 4/22 ::: Uploaded on - 01/02/2017 ::: Downloaded on - 27/08/2017 14:09:45 ::: OSWPL3254.16.doc sections that each of the petitioners are residing in the structures situate at Indira Gandhi Nagar Bandrekar Wadi, Jogeshwari East, Mumbai - 400060. They had been issued Photo Passes by the respondent No.2 under section 3-Y of the Slum Act. It is submitted that the second respondent is the Collector, Mumbai Suburban District and the third respondent is the Slum Rehabilitation Authority. Together they would implement the beneficial and ameliorative so also protective measures carved out by the first respondent in terms of the Slum Act. It is submitted that on the strength of these Photo Passes as also the structures being in existence and occupied prior to 1 st January, 1995 (the cut off date), the petitioners are eligible and entitled to claim all the benefits, including a rehabilitation by the State of Maharashtra. Then, there is reliance placed on the Housing Policy for All Missions notified by the Central Government on 25 th June, 2015.
4 The petitioners, in paragraph 7 of the writ petition, fairly state that though they have such rights which they could enforce, what occasioned their enforcement was a Civil Writ Petition No.1397 of 2016, filed in this Court. It was filed by some SRP 5/22 ::: Uploaded on - 01/02/2017 ::: Downloaded on - 27/08/2017 14:09:45 ::: OSWPL3254.16.doc employees of the Railways, inter alia, seeking reliefs pertaining to their services. This writ petition was listed before this Court on 24th October, 2016. The present petitioners were not before this Court in that writ petition. However, respondent Nos.5 and 6 to the present writ petition, namely, the Senior Section Engineer, Works Western Railways Administration, Borivali, Mumbai and the Estate Officer and Divisional Manager (Estate) Western Railway, Mumbai Central, Mumbai, made some statements before this Court and which statements came to be accepted. The statements are to the effect that the structures are on railway property. They have encroached on the railway property. The petitioners are the squatters and they do not possess any right, title and interest. The petitioners were already proceeded against by relying upon section 5-A of the PP Act. This Court, therefore, recorded the statements of the officials of the railway administration that they would proceed against these structures and demolish them.
5 When the petitioners became aware of this order, they first sought to intervene in the writ petition and by filing an interim application styled as Notice of Motion (Lodging) No. 743 SRP 6/22 ::: Uploaded on - 01/02/2017 ::: Downloaded on - 27/08/2017 14:09:45 ::: OSWPL3254.16.doc of 2016 in Writ Petition No. 1397 of 2016. The petitioners rely upon an order passed by this Court on the said Notice of Motion and urge that on the strength of this order, they are eligible to invoke the jurisdiction of this Court under Article 226 of the Constitution of India. According to the petitioners, this order specifically enables them to move a substantive proceeding. A copy of this order is to be found at page 144 of the paper-book. This order reads as under :
"1. Not on board. Taken on board.
2. The Notice of motion for intervention cannot be entertained for more than one reason. The Applicant which is a Society registered under the Societies Registration Act, 1860 claims to represent the cases of several persons. The said persons are in possession of different structures. Their cases cannot be identical. If the members of the Applicant want protection against eviction, each member will have to make out a case on merits by filing appropriate proceedings in accordance with law. The second reason is that the members of the Applicant are aware that the Railways intend to take action of demolition as can be seen from the order dated 24 th October 2016 of this Court. Therefore, the remedy of the persons who are likely to be affected by the action of demolition is to file substantive proceedings in accordance with law. Lastly, the learned counsel appearing for the Railways states that due process of law has been followed by the Railways before initiating action of demolition.
3. Hence, we dispose of the Notice of Motion."SRP 7/22 ::: Uploaded on - 01/02/2017 ::: Downloaded on - 27/08/2017 14:09:45 :::
OSWPL3254.16.doc 6 The petitioners then submit that they are aware that the action of the railways is pursuant to the railways resorting to the PP Act. There are orders passed in February, 2006, under that Act. The petitioners question these orders and by raising several contentions. However, in paragraph 10 of the writ petition, they fairly state that some of the petitioners were advised to challenge that order of the Estate Officer in Appeal before the City Civil Court. However, since the issue concerns the right to shelter, they are directly moving this Court in writ jurisdiction. The grounds on which the reliefs are sought are set out at page 14 of the writ petition, paragraph 11. 7 It is on the above pleadings that the afore referred reliefs are sought.
8 An affidavit-in-reply has been filed by the Senior Divisional Engineer (Estate/ South) of Western Railway. He states that the petitioners are falsely and dishonestly claiming that the railway administration is initiating an action of demolition without following due process of law or without issuing SRP 8/22 ::: Uploaded on - 01/02/2017 ::: Downloaded on - 27/08/2017 14:09:45 ::: OSWPL3254.16.doc notices and without service of the eviction order. The affidavit-in- reply at running page 150, paragraph 2, relies upon a letter dated 28th March, 2010, addressed to the then Member of Parliament and Minister in the Central Cabinet Mr. Gurudas Kamat. In that letter, it is stated that the railway administration has followed due process of law by issuing the notices to the affected parties and passed an eviction order. They are now initiating an action to demolish the structures. Then, in paragraph 3, it is stated that some of the petitioners filed Suits bearing Nos.1189 of 1998 and Suit No.133 of 1999 against the railway administration challenging the proposed action of removal of encroachment without following due process of law. In such proceedings, the railway administration made a statement that due process of law will be followed.
9 Thereafter, the requisite notices were issued and section 5-A of the PP Act was invoked by the railway administration. It is submitted that section 5-A confers an independent power to remove unauthorised construction etc. There, the Estate Officer may serve upon the person who is contemplated by sub-section (2) of section 5-A, a notice, requiring SRP 9/22 ::: Uploaded on - 01/02/2017 ::: Downloaded on - 27/08/2017 14:09:45 ::: OSWPL3254.16.doc him either to remove or to show cause why he shall not remove such building or other structure or fixture from the public premises within such period, not being less than seven days, as is being specified in the notice and on the omission or refusal of such person either to show cause or to remove such building or other structure or fixture from the public premises, or where the cause shown is not, in the opinion of the Estate Officer sufficient, then, the Estate Officer may, by order, remove or caused to be removed the building or other structure or fixture from the public premises and recover the cost of such removal from the person aforesaid as arrears of land revenue.
10 Then, reliance is placed upon sub-section (3) of section 5-A. It is submitted that on receipt of such eviction order, some of the petitioners along with one Pandharinath Vitthalrao Kewade and the Indira Gandhi Zopadwasi Rahiwashi Mandal filed Suit No.961 of 2007 before the City Civil Court at Mumbai seeking an injunction against the proposed demolition. That Suit came to be dismissed for want of jurisdiction. That order was challenged by way of First Appeal No.626 of 2010 in this Court. The learned single Judge, by her order dated 26 th March, 2010, dismissed the SRP 10/22 ::: Uploaded on - 01/02/2017 ::: Downloaded on - 27/08/2017 14:09:45 ::: OSWPL3254.16.doc First Appeal.
11 Then, when a Notice of Motion was dismissed by this Court in the above Writ Petition No.1397 of 2016 on 18 th November, 2016, the thirteen petitioners filed an appeal before the Principal Judge, Bombay City Civil Court, Bombay, challenging the order passed under section 5-A of the Act wherein the Principal Judge held that the appeal was not competent. 12 Thus, it is submitted that section 5-A confers independent powers and once those have been resorted to, invoked and an order made in accordance with law in such proceedings, then, that cannot be set at naught by entertaining a substantive petition.
13 Thus, these officials repeat and reiterate their statements made in Writ Petition No.1397 of 2016, which were accepted as undertakings to this Court, that the unauthorised structures would be removed, are legal and valid. It is based on the position prevailing in law.
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OSWPL3254.16.doc 14 It is on such a writ petition that we heard earlier the party-in-person who had filed Writ Petition No. 1397 of 2016. We also heard Mr. Agarwal appearing for the railways and we have also heard the advocate Mr. R.S. Panchal appearing for the petitioners in the present petition.
15 The only argument which was canvassed on the earlier occasion but given up today is that based on the order passed by this Court in Writ Petition No.1397 of 2016, the present petitioners cannot be evicted nor their structures demolished by the railway administration. Allowing that administration to do so would contravene the basic and fundamental principles of rule of law and natural justice. Once these petitioners were not heard, though they are affected and vitally by the demolition, then, the earlier orders do not bind them.
16 In that regard we find that the railway administration has filed a comprehensive reply and has rightly accused the petitioners of trying to stall a lawful demolition activity. The petitioners were aware that the premises are public premises and SRP 12/22 ::: Uploaded on - 01/02/2017 ::: Downloaded on - 27/08/2017 14:09:45 ::: OSWPL3254.16.doc they are covered by the PP Act, 1971. That Act and the powers thereunder can be validly invoked by the railway administration. It is those powers which are invoked. Though on this writ petition a Division Bench of this Court was pursuaded to pass an order on 7th December, 2016, directing the railways / respondents not to demolish the premises, on that date, this Court did not have the benefit of the entire record. It did not have the benefit of a detailed affidavit-in-reply filed to this writ petition and the annexures thereto. The annexures thereto would reveal as to how every attempt has been made by these petitioners who are squatting and encroaching on the railway property for decades together to stall and defeat a lawful demolition activity. They are also trying to defeat a legal and valid order passed by the Estate Officer under section 5-A of the PP Act. The copies of all the orders which have been passed by the authorities are annexed to the affidavit-in-reply. That indicates as to how the railways have served the occupants and even individuals. Had this not been the position, the attempts would not have been made to defeat that order by filing a civil suit. That order was not challenged by the individuals. The orders have been passed on 11th February, 2006. More than ten years have elapsed from the said order, but no SRP 13/22 ::: Uploaded on - 01/02/2017 ::: Downloaded on - 27/08/2017 14:09:45 ::: OSWPL3254.16.doc demolition activity could be carried out. It is only some public spirited citizen and vigilant employees of the railways who eventually brought to the notice of this Court the total inaction and laxity on the part of the railway administration. Though armed with such orders, the railway administration never took steps to implement them. These orders were sought to be defeated and years after their passing by first filing a civil suit. The plaintiffs therein who are the petitioners before us are advised by competent set of advocates. They knew that section 15 of the PP Act would not enable a civil court to entertain a suit or proceeding in relation to the eviction orders and which are passed by invoking the PP Act. Thus, the civil court is not competent to entertain and try any suit. No dispute on title can ever be raised in such proceedings for the parties proceeded on the footing that the property vests in the railway administration. The lands belong to the railways. They were encroached upon and structures were erected and constructed thereon. Once a statement was made that the suit was incompetent, the City Civil Court passed a detailed order after hearing both sides on the issue of jurisdiction. That order was passed only on 26 th March, 2010. That order was passed after hearing both sides. The petitioners, SRP 14/22 ::: Uploaded on - 01/02/2017 ::: Downloaded on - 27/08/2017 14:09:45 ::: OSWPL3254.16.doc who are plaintiffs therein, had sufficient opportunities to satisfy the trial court that their suit was competent. Not being satisfied with the order of the civil court holding that it is incompetent to entertain and try the suit and consequently dismissing it, a First Appeal No.626 of 2016 was filed in this Court which was also dismissed on 4th May, 2010. Thereafter, as rightly pointed out by the railways, an attempt was made to defeat a lawful and order passed by this Court in writ petition No.1397 of 2016. 17 It is necessary to refer to that order. The order was passed on 24th October, 2016. That order reads as under :
"1. Mr. Agrawal, appearing on behalf of the railway authorities states, upon instructions, that the Divisional Engineer (Estate/North), Mumbai Central, Mumbai, has determined 14 th to 18th November, 2016 as the days within which the demolition of the unauthorized structures {Indira Nagar, Jogeshwari (East), Mumbai} would be carried out.
2. It is stated that on account of the ensuing Diwali festival adequate manpower will not be available and that is the reason why these dates are determined and fixed by the authorities.
3. We accept the statements made by Mr. Agrawal on instructions and post these matters on 25-11-2016 , on the supplementary list.
4. Needless to clarify that these statements made are accepted as undertakings to this Court. The SRP 15/22 ::: Uploaded on - 01/02/2017 ::: Downloaded on - 27/08/2017 14:09:45 ::: OSWPL3254.16.doc learned AGP has also assured the Court that officials of the Vanrai and Jogeshwari Police Stations will render all assistance to the railway authorities in carrying out the demolition at the site. This statement is also accepted as an undertaking to this Court."
18 This Court was time and again informed that the railways have not taken any action and their inaction would result in a permanent loss of public property. The railways and their officers firstly placed before this Court, a difficulty and which they stated is a practical one. On 23 rd September, 2016, the Division Bench which passed the earlier orders was informed that police protection is not being made available. That police protection if made available would enable the respondents / railways to proceed and implement not only the eviction orders, but the order based on their statements passed on 20 th August, 2016. That is how this Court activated the State administration and directed that they should provide police protection. After that aspect was taken care of, once again on 7 th October, 2016, this Court was informed that some assistance was promised, but it is still not forthcoming. Hence the writ petition was placed on 24th October, 2016, after which a detailed order was passed. SRP 16/22 ::: Uploaded on - 01/02/2017 ::: Downloaded on - 27/08/2017 14:09:45 :::
OSWPL3254.16.doc 19 The petitioners attempted to defeat that order by moving a Notice of Motion (Lodg.) No. 743 of 2016 in that very petition. It is in these circumstances that we fail to understand as to how the petitioners could have invoked the powers of the Bombay City Civil Court at Bombay and particularly the Principal Judge thereof to protect them in an appeal. In that order passed on 5th December, 2016, the learned Principal Judge has rightly held that section 5-A of the Public Premises Act was invoked by the railway administration. The order was passed after taking note of a complaint of the petitioners' counsel that though section 5-A was invoked, the ultimate order passed in such proceedings refers to sub-section (2) of section 5 of the PP Act. The learned Principal Judge held that quoting an erroneous or referring to a wrong provision in the Act will not vitiate the proceedings or the order and if there is power conferred in the railways under the PP Act to initiate proceedings against rank trespassers, encroachers and squatters on railway property, then, quoting of a wrong section in the PP Act will not vitiate the final order. That order was otherwise also traceable to section 5-A is the conclusion rendered by the learned Principal Judge. It is thus clear that the order passed by this Court recording the railways undertaking SRP 17/22 ::: Uploaded on - 01/02/2017 ::: Downloaded on - 27/08/2017 14:09:45 ::: OSWPL3254.16.doc has been rightly referred to by the Principal Judge. He held in paragraph 6 of his order that the demolition drive was continued by the respondents pursuant to the further directions of this Court in writ petition No.1397 of 2016. The order passed in the case of Savitri Laxman Savarte in Writ Petition No. 2687 of 2015 was also referred to. Thus, it is not a case where even the Division Bench order passed on 18th November, 2016, enabled the petitioners to move the City Civil Court. That appeal was incompetent and dismissed as such.
20 It is thereafter this writ petition was moved. We are, therefore, of the clear opinion that this is an abuse of the process of this Court. The jurisdiction under Article 226 of the Constitution of India is not available to such encroachers and law breakers who, with impunity, enter upon public properties and without any right or a semblance of any permission proceed to erect and construct structures thereon. These structures may be existing for decades together, but the very act of encroaching upon railway property being a punishable offence as also the powers conferred to evict the encroachers in law being constitutionally valid, then, we cannot overlook all such legal SRP 18/22 ::: Uploaded on - 01/02/2017 ::: Downloaded on - 27/08/2017 14:09:45 ::: OSWPL3254.16.doc orders and defeat and frustrate their implementation and enforcement by entertaining a writ petition. This is a back door method of trying to perpetuate a patently illegal occupation of public premises. To our mind to such properties and which are public premises, the Slum Act can have no application. The Slum Act makes better provision for the enforcement and clearance of slum areas in the State and their redevelopment. In the present case, the properties are not declared as slum areas. The Act itself applies to such properties which by their very nature can be termed as slums. Chapter I-A enables a Slum Rehabilitation Scheme to be made and enforced. Chapter I-B, therefore, enacts provisions so as to take care of the rights of those who can be said to be protected occupiers, their relocation and rehabilitation. We do not see how the Act can be invoked and by applying the logic that the subject structures are slums. There is no question, therefore, of any protection and in the facts and circumstances of this case, being granted by permitting invocation of the Slum Act. We are of the firm opinion that this law cannot be invoked and to defeat a lawful and valid action.
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OSWPL3254.16.doc 21 For the above reasons, we dismiss the writ petition with heavy compensatory costs and quantified at Rs.5,00,000/-. The costs shall be paid by the petitioners to the railway administration, namely, respondent Nos.5 and 6 to this writ petition, within a period of eight weeks. In addition to demolition of their structures and their removal, each of these petitioners' movable and other immovable properties can be attached and sold by invoking the provisions of the Maharashtra Land Revenue Code, 1966, in the event these costs are not paid. We are constrained to direct such payment of costs because we are routinely finding that valid and binding orders of Division Benches of this Court are being frustrated and their implementation defeated by resorting to frivolous and vexatious proceedings as are presently before us. A Division Bench, after passing an order and which is not challenged, is not moved by those affected parties and within the legal framework. They chose to institute another writ petition in this Court and by which they seek to recall earlier valid and legal order passed in a writ petition under Article 226 of the Constitution of India without establishing as to how in the absence of any right, title and interest in the immovable property belonging to the Central SRP 20/22 ::: Uploaded on - 01/02/2017 ::: Downloaded on - 27/08/2017 14:09:45 ::: OSWPL3254.16.doc Government / railways can they maintain such a challenge and by way of substantive writ petition. Normally such writ petitions are filed as a desperate attempt but prior thereto under legal advise orders of this Court are sought to be defeated and frustrated by filing civil suits. We do not see how orders passed by this Court and which bind civil courts can be bypassed by a civil court and in the manner suggested by the petitioners and their advocates. In such circumstances, these are not slum dwellers but occupants of structures constructed by encroaching railway property and who have competent legal advise at their command. They can afford repeated challenges and by filing legal proceedings in different Courts. Surely they do not deserve to be protected. No sympathy can be shown to such people. Once they are abusing this Court's jurisdiction, we are justified in directing the payment of costs as above. These powers are inherent in the larger power to do justice which vest in this Court. These powers are inherent in the exercise of our writ jurisdiction.
22 The writ petition is dismissed accordingly. 23 In the light of the dismissal of this writ petition, all SRP 21/22 ::: Uploaded on - 01/02/2017 ::: Downloaded on - 27/08/2017 14:09:45 ::: OSWPL3254.16.doc other writ petitions and proceedings before this Court which were directed to be taken up for hearing together are also disposed of.
B.P. COLABAWALLA, J. S.C. DHARMADHIKARI, J. SRP 22/22 ::: Uploaded on - 01/02/2017 ::: Downloaded on - 27/08/2017 14:09:45 :::