Calcutta High Court
Manindra Nath Mukherji And Ors. vs Union Of India (Uoi) And Ors. on 12 February, 1988
Equivalent citations: AIR1988CAL395, (1988)2CALLT159(HC), AIR 1988 CALCUTTA 395, (1988) 1 CAL HN 430 (1988) 2 CALLJ 159, (1988) 2 CALLJ 159
ORDER K.M. Yusuf, J.
1. In the two writ applications a number of businessmen carrying on business in several plots of land at the commercial plots of the Railway Administration near Jadavpur Railway Station since 1950-51 have challenged a number of notices dated 6th January, 1986 asking them to vacate the respective plots within 30 days from the receipt of the notices. Both the applications are disposed of by this judgment.
2. The petitioners were bringing quantities of goods on railway siding through Goods Train and each of the petitioners became the source of revenue of the respondents to the tune of Rs. 20 lakhs per year. The agreement entered with the Railways in respect of the said plots of land is subject in renewal from time to time and the licence fee is also subject to revision. In or about 1981 the Railway Authority framed a scheme to utilise the commercial plots for their administrative purpose and decided to allot new commercial plots to the writ petitioners within the railway premises as alternative to the existing plots and the said scheme was finally prepared in 1983, a copy of which is also annexed to the writ applications as drawn by the District Engineer (Construction) and this plan was approved by the authorities sometime in 1985. Thereafter the impugned notices dated 6th January, 1986 were issued by the respondent 4 asking the petitioners to deliver vacant possession of the said plots of railway land "urgently required by the Railway Administration for carrying out modification required to provide more passenger amenities ....." etc. The contention of the petitioners is that it is apparent from the plan annexed to the writ application that the alternative commercial plots have been arranged in lieu of the existing commercial plots under the occupation of the petitioners but without first allotting the said plots to the existing petitioners after executing the agreement and without granting sufficient time to prepare and make ready new place for business purpose, the authorities acted arbitrarily by serving the impugned notices attempting to deprive the petitioners not only from the place of their business but also depriving them to get their licences renewed and thus totally stopping their means of livelihood.
3. By a supplementary affidavit the petitioners in C.O. No. 690(W) of 1986 stated that the cyclostyled sketch map was prepared by the Superintending Engineer, State Highway Planning Circle. P.W. (Roads) Department, in May 1985. In April, 1986 the Railway Board Vigilence Inspector (Traffic), New Delhi, came to the site and met the petitioners concerned who narrated the grievances of the petitioners to him and pointed out that he has inserted in the sketch map the alternative commercial plots marked as 'B' and 'C' and also those plots occupied by unauthorised persons shown as mark 'A'. At the request of the particular deponent Biswanath Das, the officer parted with a copy of the sketch map which is annexed with the affidavit-in-reply in CO. No. 690(W) of 1986. By the initiative of the Chairman, Borough Committee of the Calcutta Municipal Corporation a meeting was arranged to discuss the matter on 22nd April 1987 in the Writers' Buildings in the room of the Minister, P.W.D., West Bengal, where the Chief Engineer, Eastern Railways (Construction) was present and the Chief Engineer assured that they would see that the alternative accommodations were provided to the writ petitioners but first the petitioners must undertake in writing to get the interim order obtained in the writ applications, vacated. On such an undertaking given, the Railway Authority would issue a letter of assurance to the petitioners to the effect that they would be accommodated in alternative new commercial plots.
4. The defence case of the respondents is that there is no condition attached to the licence given to the petitioners that they would be provided with the alternative plots nor any such agreement was entered into among the parties and this was known to the petitioners. It was denied that in 1985 the Railway Authority framed and approved any schemeto allot new commercial plots in place of the existing commercial plots. On 2nd November. 1975 a meeting was held presided over by the then Minister-in-Charge. Local Government of Urban Development, West Bengal and in the said meeting it was decided that some railway over-bridges are to be constructed on the railway crossing at Jadavpur, Srirampore and Sodpore Railway Station in 1981-82 and at Belgharia, Sheoraphuli and Barrackpore in 1982-83. The respondents' contention is that the construction of an elevated Link Road connecting Grafa Road Arm to the proposed road over-bridge at Jadavpur, the P.W. (Roads) Department, Government of West Bengal required a portion of railway land, closed to the western boundary line of Jadavpur Railway Station and for the said construction of the elevated Link Road the plan was prepared in April, 1983. The construction of the said link road was meant only for the interest of the public at large and it was to be immediately constructed as the local people are facing great hardships daily without the bridge and they are pressing the State Government and the railways for immediate construction of the road over-bridge. The P.W. (Roads) Department repeatedly requested the railway authority to transfer the land to the Department so that the work for the construction can be immediately started but the same could not be done due to the resistance of the petitioners. The Chief Engineer, P.W. (Roads) Department, by communication dated 20th December, 1983 again asked the Chief Engineer (Construction), Eastern Railway, that the land near Jadavpur Railway Station are immediately required by the Department for the construction of the over-bridge. The plan being Annexure 'B' to the writ application was cancelled and a fresh plan after certain modifications was prepared by the P.W. (Roads) Department. It has been specifically stated by the respondents in the affidavit-in-opposition that the railway authority has nothing to do with the said scheme for preparation of road over-bridge. The respondents state that after taking steps in pursuance of the impugned notices the interest of the public at large is seriously affected by the interim order dated 24th January, 1986 passed by the Hon'ble High Court. The petitioners have no legal right as they were mere licencees of railway plots. By an affidavit-in-opposition to the supplementary affidavit filed by the writ petitioners the respondents seriously question the authenticity of the plan annexed by the writ petitioners. It is further stated in the said affidavit that the Divisional Railway Manager, Eastern Railway (Sealdah), is the only authority who is to look after and/or to deal with the matters relating with the contracts and agreements made between the Railways and with the third parties and, as such, in the instant case only the Eastern Railway Divisional Manager is the authority to suggest for providing alternative accommodation if any at all.
5. In the two affidavits-in-reply filed by the writ petitioners nothing new has been stated except reiterating their earlier contentions and pointing out that the plots in question are required by the P.W. 1 Roads) Department, Government of West Bengal and not required for the railway purpose as mentioned in the impugned notices.
6. Mr. Banerji, the learned Counsel appearing for the writ petitioners, submits that the notices under challenge were issued by the Joint Director (T), Coal Railway Board exclusively for the requirements of the Railway Administration for carrying out modifications to provide amenities to the passengers. But the very purpose of the impugned notices were changed by the railway authorities themselves when in the affidavit-in-opposition filed to the writ petitions it is categorically stated by the respondents that the lands in question are immediately required by the P.W. (Roads) Department for the construction of the road over-bridge and the elevated link road. The very purpose of requirement which was exclusively for the Railway Administration changed its nature from that of the requirement by the P.W. (Roads) Department of the government of West Bengal, The affidavit-in-opposition of the respondents on page 11, paragraph II emphatically states that "the Railway Administration has nothing to do with the said scheme for preparation of the Road Over Bridge". The commercial plots are given to the petitioners on a licence fee fixed by the railway authority and is subject to renewal from year to year on revised rates. There are several conditions attached to the license granted by the railway authority as appears from Annexure 'A' to the writ application but nowhere it is stated therein that the licence is not subject to renewal. The learned Counsel in his argument relies upon Arts. 21, 39(a) and 41 of the Constitution and also upon two decisions (the famous Olga Tellis case) and . Mr. Banerji's argument centered round the fact that the writ petitioners had never encroached upon the land but were occupying as licencees and the Railway Administration has completely deviated from the very purpose of the impugned notices which were issued for the exclusive use of the Railway Administration but now is being admitted by the respondents that the Railway Administration has nothing to do with those commercial plots but the same are urgently required by the P.W. Department of the State Government. As such the notices are bad as the very purpose of the impugned notices is dead and they are no more legal effective and operative and, as such, must be quashed.
7. Mr. Ghose, the learned Counsel appearing for the respondents, submitted that the notices served upon the petitioners specifically state that the vacant possession of the lands in question is required urgently by the Railway Administration. He contends that the conditions of licence as annexed in the affidavit-in-opposition, being Annexure 'A', clearly indicate that the petitioners are required to vacate the plots whenever the same might be required for the railway purpose arid such demand of relinquishment of the plots by the railway authorities need not mention any reason whatsoever. As the licence is subject to renewal year to year according to financial year it is crystal clear that the settlement of those commercial plots were not permanent in nature. The conditions of licence also stipulate that the occupiers shall have no right of making any pacca or permanent structure or to sublet the same to anybody else. He submitted that in the aforesaid circumstances the petitioners have no legal right of any nature to ask for alternative commercial plots in place of the existing ones and the Railway Administration is under no obligation to provide them with any such alternative accommodation. He disputed the authenticity of the map submitted by the writ petitioners.
8. The respondents have also produced a map different from that produced by the writ petitioners in which some plots have been shown, as pointed out by the learned Counsel for the future accommodation of the writ petitioners. But Mr. Ghose is very specific that such consideration can be made only on the condition that the petitioners first vacate the plots in their possession and peacefully hand over the same to the respondents. No assurance was given by the learned Counsel nor such assurance was mentioned in any affidavits filed by the respondents that the occupiers of the existing plots would get alternative accommodation. The learned Counsel cited the decision in support of his contention, and submitted that in view of the matter the impugned notices are good in law and as per conditions of the licence issued to the petitioners they are bound to vacate the commercial plots in favour of the respondents.
9. I have considered the facts of the case and the respective arguments of both the sides. The impugned notices clearly mention that the lands in question which are occupied by the writ petitioners as commercial plots for carrying on their business are urgently required by the Railway Administration and that as the Union of India is entitled at any time to resume possession of the said lands, the delivery of the possession of those lands must be given to the Railways within 30 days from the receipt of the notices. The map annexed with the writ application indicates the new sites to which the petitioners will be shifted from the existing plots to carry out their business. But the main question for consideration is whether the purpose of requirement is for the Railway Administration as mentioned in the impugned notices or for anything else. From the affidavit-in-opposition filed by the respondents it has been made crystal clear that the land would be handed over by the railway authorities to the P.W. (Roads) Department of the West Bengal Government for the construction of Road Over Bridge and the railway authority has nothing to do with the said scheme. This specific statement on the part of the respondents completely smashes the case of the railway authorities and deviates from the purpose mentioned in the impugned notices. Clause (c) of the conditions of the licence on page 18 of the affidavit-in-opposition, being Annexure 'A', runs as follows : --
"That the land will have to be relinquished by you, in case and whenever the same may be required for railway purpose or if so desired by the Administration without assigning any reason."
Here the railway purpose or the Administration mean the railway purpose and the Railway Administration as this is clear from the notices under challenge where the Administration has been referred to as the Railway Administration. In the circumstances the very purpose of requirement is changed from railway requirement to the requirement of P.W. (Roads) Department of the Government of West Bengal. The respondents are in no mood to provide any alternative accommodation for carrying out the business by the petitioners which according to the petitioners arc the only source of their livelihood. Mr. Ghose in his submission mentioned that the respondents would consider their case of alternative accommodation provided first they vacate the plots as condition precedent.
10. Articles 21, 39(a) and 41 of the Constitution have been given a new dimention in the Olga Tellis's case, by the Supreme Court. This case related to pavement dwellers of Bombay who had no legal right to encroach upon the streets or foot-paths. When dealing with the right to live the Supreme Court said that "an equally important facet of the right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as the part of constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live". The Supreme Court further added that it is "essential that the procedure prescribed by law for depriving a person of his fundamental right must conform to the norms of justice and fair play. Procedure, which is unjust or unfair in the circumstances of a case, attracts the vice of unreasonableness, thereby vitiating the law which prescribes that procedure and consequently, an action taken under it". In another case which is known as the Pachakhal case instituted by No. 57 Block, Bastuhara Committee, it was held that there was no manner of doubt that the State Government had to seriously try to settle those unfortunate persons in the best possible manner as far as practicable. Here the hut-dwellers were occupying both sides of Pachakhal Canal, i.e., Kulti Canal illegally and the Calcutta Municipal Corporation wanted to evict the occupants, who had set up shanties and hutments, for the purpose of carrying out excavation of the canal. In this particular case the State of West Bengal by an affidavit assured the Court that the Government is not oblivious of the social problem associated with the petitioners and other hutment dwellers by the side of the said canal and the Government has been giving its anxious consideration to rehabilitate them within the means and resources of the State as far as practicable.
11. Here it can safely be said that in the instant case the petitioners have not encroached illegally any portion of the land of the railway authorities but they are there as a matter of right by agreement on payment of licence fees and carrying on business with the full approval of the respondents for years together. It is the bounden duty of the respondents to provide them with alternative accommodation and they cannot shirk their responsibility and throw away the petitioners at the mercy of nature by depriving them from their means of livelihood. The stand taken by the respondents is wholly unjustified both on the ground of impugned notices as well as to provide the petitioners with alternative accommodations. In my opinion they have no case at all to implement the impugned notices which have lost force and effectiveness the moment the respondents said on oath that the Railway Authority has nothing to do with the scheme for preparation of Road Over Bridge. Even in spite of this statement the respondents are bent upon to implement the impugned notices and this act on their part is sheer mala fide with the ulterior object to dislodge the petitioners. I find no jurisdiction in upholding the contentions of Mr. Ghose and the decision cited by him is not at all relevant to this case. The submission made by Mr. Banerji both on the points of notice and alternative accommodation have substantial merits.
12. In view of the matter the writ applications succeed and the impugned notices dated 6th January, 1986 are hereby quashed. The respondents will pay 50 G.M.s each as costs to the writ petitioners in C. O. No. 690(w) of 1986 and C. O. No. 691(w) of 1986.