Tilak Nagar Vikas Samiti, Bikaner v. State of Rajasthan & Ors.
2006-05-26
DINESH MAHESHWARI, S.N.JHA
body2006
DigiLaw.ai
Judgment Dinesh Maheshwari, J.- This writ petition, styled as Public Interest Litigation has been submitted by one Tilak Nagar Vikas Samiti, Bikaner, said to be a society registered under the Societies Registration Act, purportedly to make a request to this Court to come to the rescue of poor persons residing at Tilak Nagar Kachi Basti, Bikaner who are sought to be uprooted by the Urban Improvement Trust Bikaner (UIT for short) at the instance of high-ups; and the petitioner has prayed for the following relief s:- “It is, therefore, most humbly and respectfully prayed that record of the case may be called for and by an appropriate writ, order or direction:- i. thedecision of the respondent/Trust in extending the so called Ashok Nagar Scheme in the Tilak Nagar area, be quashed and set aside and respondents may kindly be restrained from dispossessing/evicting the members of the petitioner-Samiti from the area in question in pursuance of the said decision of the Trust; ii. respondents may kindly be directed to regularize the old possession of the members of the petitioner-Samiti and they may be issued Pattas in accordance with the extent circulars/orders issued by the State Government from time to time after charging price/rate as fixed by the State Government; iii. therespondents may kindly be directed to reconstruct the kucha/pucca construction removed by them illegally in the recent programme named “Operation Clean and Safe Road” and such of the members may be compensated adequately; iv. in the alternative and without prejudice to above it is prayed that the so called " Ashok Nagar and alleged extension Scheme", be declared illegal and accordingly be quashed by this Honble Court; v. during the pendency of the writ petition the status quo ante be ordered; vi. if during the pendency of the writ petition it is shown that any allotment has been made in favour of any person, the same may also be quashed and no possession of land be ordered to be handed over to any such allottee(s) and no lease deed etc be permitted to be executed in their favour and they be further restrained from raising any kind of construction thereon; vi. anyother appropriate relief(s) which this Honble High Court deems just and proper in the facts and circumstances of the case may be passed in favour of the petitioner; vii.
anyother appropriate relief(s) which this Honble High Court deems just and proper in the facts and circumstances of the case may be passed in favour of the petitioner; vii. writ petition of the petitioner may kindly be allowed with costs." 2. Multifarious reliefs aforesaid, essentially seeking prohibition against the respondent-UIT from proceeding with extension of their Ashok Nagar Scheme to the Tilak Nagar area and for directions to the respondents to regularize the possession on the disputed place and to restore the removed construction have been claimed on the statement of facts in the writ petition to the effect that the plan annexed with the writ petition as Annexure-1 relate to the entire area in question; that at an adjacent land the respondent-UIT has established Ashok Nagar and in the garb of its extension, the UIT has taken a decision to uproot the poor persons of petitioner-Society and to allot the land to some high-ups; that Tilak Nagar came into existence 4-5 decades back with a large number of poor and illiterate person settling thereat; they raised kucha/pucca construction and some part of the land changed hands also; that no objection whatsoever was raised by any local authority in such settlement of people and in due course of time, they got electricity, water and telephone connections, ration cards and were included in the voter lists also; that the area in question occupied by the members of the petitioner-Society answer to the definition of Kuchi Basti; that when Ashok Nagar Scheme was under contemplation, representations were made to the District Administration and to the then Chief Minister with a request to shift Ashok Nagar Scheme to some other place; that after the change of Government in the State of Rajasthan, certain persons prevailed upon the Government to take steps for removal of Tilak Nagar and in the name of a programme known as Operation Clean and Safe Roads the District Administration with UIT started removing construction from the area and demolished various constructions that led to serious protests but demolition drive continued with inhuman behaviour with the persons concerned; that the Government has from time to time issued circulars for regularization of such possession; that to the members of the petitioner-Society, only assurances were given but they remain under constant threats of being dislodged forcibly. 3.
3. The petitioner has contended in this writ petition that its members are landless persons and have no place of residence and are in possession of the land in question for over 50 years and they have perfected their title by adverse possession and cannot be ousted in summary manner; that the decision to dislodge such persons from the area in question without due process of law is illegal and arbitrary and violative of Articles 14, 19, 21 and 300-A of the Constitution of India; that in identical matter of Rajeev Gandhi Kachi Basti at Jodhpur, this Court has refused to give directions under Article 226 of the Constitution of India to evict large number of families settled for number of years; that the action of the respondents in seeking to uproot the poor persons who had settled at the place in question in their knowledge is wholly unreasonable, unjust and arbitrary; that the scheme of Ashok Nagar has not been notified in accordance with the requirements of the Urban Improvement Act, 1959 (the Act) and, therefore, the entire action is unauthorized; that various other Kachi Basties are being provided relief but with respect to this Tilak Nagar Kachi Basti, an exception is being taken and instead of regularizing their possession, they are sought to be dislodged; that the Basti in question has already developed and cannot be permitted to be removed; that the members of the petitioner-Society on the promise made by the authorities by providing amenities/facilities became confident that their possession shall be regularized and, therefore, invested huge amount in raising contraction and in getting water, electricity and telephone facilities and now the respondents cannot turn around and uproot them. 4. The respondent UIT in its reply has raised preliminary objections that the petition for the reliefs claimed is not a Public Interest Litigation; that the encroachers cannot claim right of regularization on the Government land; that there is no question of infringement of any legal or fundamental right of any person and hence the petitioner cannot maintain the writ petition.
The respondent UIT in its reply has raised preliminary objections that the petition for the reliefs claimed is not a Public Interest Litigation; that the encroachers cannot claim right of regularization on the Government land; that there is no question of infringement of any legal or fundamental right of any person and hence the petitioner cannot maintain the writ petition. While questioning the status of petitioner-Society, the respondent-UIT has averred that the plan Annexure-1 is not clear on material particulars and in fact the petitioner has submitted the plan of village Ridmalsar whereas the UIT Scheme of Ashok Nagar is in village Sharah Kajani wherein the UIT was allotted 90.04 hectares of land by the Collector and further 2.52 hectares land was added to it; that the name of UIT has been mutated in the revenue records; that the UIT prepared a scheme under Rule 8 of the Rajasthan Urban Improvement Trust (Disposal of Urban Land) Rules, 1974 (the Rules of 1974) and the scheme was approved by the Senior Town planner under Rule 9 of the Rules of 1974 and is called Ashok Nagar Scheme and yet further scheme was prepared under the same Rules that was also approved; that under these schemes out of total 812 plots carved out, the UIT has sold 438 plots by allotment and 6 plots by way of auction; that tenders have already been invited for development work under these schemes. The UIT has maintained while filing a sketch map of the location of Ashok Nagar Scheme that the so-called Tilak Nagar area is situated in village Ridmalsar Purohitan belonging to the persons having their own khatedari land who had from time to time applied for conversion of their land from agriculture to residential or commercial and such conversion had been permitted in accordance with law after surrender of their khatedari rights and after charging prescribed conversion and development charges. It has also been submitted that all the submissions in the writ petition regarding habitat at Tilak Nagar are irrelevant because Tilak Nagar is situated at different place. It has been maintained that if some persons made encroachment on the Government land and then sold it by way of agreement, then the purchasers have no right and they have intentionally purchased the land at their own risk and they cannot be termed as poor persons.
It has been maintained that if some persons made encroachment on the Government land and then sold it by way of agreement, then the purchasers have no right and they have intentionally purchased the land at their own risk and they cannot be termed as poor persons. It has also been alleged that the submission of representation is of no consequence and the Government has from time to time issued circulars curbing against encroachments and for removal of unauthorized possessions and that is required to be done so that law abiding citizens do not face difficulty in living peacefully in a planned developed area. It has also been maintained that some part of the encroachment had been removed when the campaign started in the month of March, 2005 and completed in the month of May, 2005 and thereafter the petitioner-Society has filed the writ petition in the month of July, 2005. It has been repeatedly maintained that there is no such Kuchi Basti called Tilak Nagar and the decision of this Court in Anil Chordias case has been distinguished being based on its own facts and it has been submitted that if the UIT would be forced to regularize, that would be detrimental to the planned development. The contentions regarding want of sanctioned scheme have been replied to the effect that the land in question is not required to be acquired and, therefore, there is no necessity of the approval of scheme as contemplated by Chapter-V of the Act; and the scheme has rightly been framed under the Rules of 1974. It has also been suggested that for claiming a right by way of adverse possession, the person concerned must adopt suitable remedy before the civil Court. The answering respondent has also pointed out the order passed by this Court in Writ Petition No. 1159/2005 restraining the State from passing any order for regularization of Kachi Basti and consequential directions issued by the State Government on 06.06.2005. 5. The petitioner has submitted a rejoinder with the submissions that the scheme has unauthorisedly been framed despite knowledge of possession of the members of the petitioner-Society; that they were ready to have their possession regularized on reasonable charges but the UIT did not follow this procedure and allotted plots to their blue eyed persons.
5. The petitioner has submitted a rejoinder with the submissions that the scheme has unauthorisedly been framed despite knowledge of possession of the members of the petitioner-Society; that they were ready to have their possession regularized on reasonable charges but the UIT did not follow this procedure and allotted plots to their blue eyed persons. The petitioner has made reference to the decisions of the Honble Supreme Court in the case of Government of Andhra Pradesh vs. Thummala Krishna Rao, 1982 (2) SCC 134 and in the case of State of Rajasthan vs. Padmavati Devi, 1995 Suppl. (2) SCC 290 to submit that bona fide occupants cannot be thrown out in summary manner. It has also been averred in the rejoinder submissions that the members of petitioner society cannot be termed as encroachers and at best they can be said to be in occupation of the land in question in an unauthorized manner but with the knowledge and tacit consent of the local authorities and that they have acquired the right to hold property and the petition has rightly been maintained as Public Interest Litigation. The plan submitted with the reply by the UIT has been disputed with the submission that the same has been prepared while sitting in the office and allotments have also been made whereas the land was not even unoccupied land. The sum and substance of the submissions of the petitioner remains that the members of the petitioner-Society are poor persons and are in possession of the land in question for last 4-5 decades and the attempt to oust them is wholly illegal, unauthorized and unconstitutional. 6. While making submissions in support of the writ petition, it has been strenuously contended by learned Counsel Mr. Kalla with reference to the decisions of the Honble Supreme Court, noticed Supra and another decision of the Honble Supreme Court in Pradesh Pong Bandh Visthapit Samiti, Rajasthan & Anr.
6. While making submissions in support of the writ petition, it has been strenuously contended by learned Counsel Mr. Kalla with reference to the decisions of the Honble Supreme Court, noticed Supra and another decision of the Honble Supreme Court in Pradesh Pong Bandh Visthapit Samiti, Rajasthan & Anr. vs. Union of India & Ors., AIR 1996 SC 3445 (Pong Dam Oustees Case) that the poor members of the petitioner-Society are in settled possession of the land in question for about 50 years and the entire Basti of 3000 persons has come into existence in the knowledge of the local authorities and they cannot be permitted to be thrown out in such summary manner by the UIT and that the so-called scheme of the UIT itself is not framed in accordance with law nor could be implemented at the site. 7. Having given our thoughtful and anxious consideration to the submissions and having examined the record of the case with reference to the law applicable, we are clearly of the opinion that this writ petition though styled as a Public Interest Litigation (PIL), cannot even be termed as a PIL nor the petitioner is entitled to the reliefs claimed for and the writ petition deserves to be dismissed. 8. In the first place we are clearly of opinion that merely because a cause is sought to be espoused by or on behalf of numerous persons, that by itself does not make the litigation a PIL. To be worth its name, a Public Interest Litigation, is fundamentally a non-adversary litigation wherein the petitioner does not represent any particular person or body of persons; but represents such a cause in which Public at large is interested, in which Courts intervention is required to serve the public good, and not for vindication of any particular claim of a person or a body of person against another, be it the Government or a local body. We have noticed the substance of the averments in the writ petition, the grounds raised and the reliefs claimed. It is at once apparent that what the petitioner seeks to claim by way of this writ petition relates to the claim of the petitioner and its members to remain in possession of Government land and not to be removed. Such a claim, merely for being raised in the name of numerous persons, cannot be termed as Public Interest Litigation.
It is at once apparent that what the petitioner seeks to claim by way of this writ petition relates to the claim of the petitioner and its members to remain in possession of Government land and not to be removed. Such a claim, merely for being raised in the name of numerous persons, cannot be termed as Public Interest Litigation. The litigation in essence remains the personal litigation on the personal cause of the members of the petitioner society where they seek to litigate against the Government and the UIT. It cannot be construed as a genuine Public Interest Litigation. 9. Moreover, we find in the present case that the extent of possession in the name of Tilak Nagar Basti is itself a matter has pointed out representations having been made to the past Government and so also to the present. However, nothing has been placed on record to even remotely suggest that at any level, the claim of the petitioner was taken to be even worth consideration. On the other hand, it remains undeniable that the encroachment removal drive commenced in the month of March, 2005 and continued till May, 2005 and substantial number of constructions were removed. The petitioner-Society said to be in existence from the year 2001 and said to be so concerned with the present cause has not given even an inkling as to why prompt action was not taken when the removal process was taken up? Noteworthy it is that such encroachment removal by the UIT had been taken up after due publicity as is apparent from the newspaper advertisement (Annexure-R-7). This writ petition submitted only on 15.06.2005 could least be said to be espousing a genuine cause. 10. Reference to the decision in Thummala Krishna Rao and Padmavati Devi (Supra), to say the least, is absolutely misconceived. The Honble Supreme Court in both the cases aforesaid, though in different set of facts, was concerned with the persons in occupation of the land raising a bona fide claim to the title.
10. Reference to the decision in Thummala Krishna Rao and Padmavati Devi (Supra), to say the least, is absolutely misconceived. The Honble Supreme Court in both the cases aforesaid, though in different set of facts, was concerned with the persons in occupation of the land raising a bona fide claim to the title. In Padmavati Devis case the Honble Supreme Court while referring to Thummala Krishna Raos case has pointed out,- “Dealing with similar provisions contained in Section 6 of the Andhra Pradesh Land Encroachment Act, 1945, this Court in Government of A.P. vs. Thummala Krishna Rao has laid down that the summary remedy for eviction provided by Section 6 of the said Act could be resorted to by the Government only against persons who are in unauthorised occupation of any land which is the property of the Government and if the person in occupation has a bona fide claim to litigate he could not be ejected save by the due process of law and that the summary remedy prescribed by Section 6 was not the kind of legal process which is suited to an adjudication of complicated questions of title. For the same reasons, it can be said that summary remedy available under Section 91 of the Act is not the legal process which is suited for adjudication of complicated questions of title where the person sought to be evicted as an unauthorised occupant makes a bona fide claim regarding his right to be in possession. In such a case the proper course is to have the matter adjudicated by the ordinary Courts of law.” It is not in dispute that in the present case, there is no claim of title to the land in question that remains admittedly a Government land and the capacity of the so-called members of the petitioner-Society is nothing but either of encroachers or the transferees from the encroachers. Such encroachments could never be countenanced and least any writ, order or direction would be issued to maintain and even regularise them. 11. Equally, reference to the decision in Pong Dam Oustees, case (Supra), is fundamentally misplaced. The problem therein related to the settlement of the persons in the State of Rajasthan who got ousted from their land falling within the territorial limits earlier with the State of Punjab and then with the State of Himachal Pradesh because of construction of Pong Dam.
Equally, reference to the decision in Pong Dam Oustees, case (Supra), is fundamentally misplaced. The problem therein related to the settlement of the persons in the State of Rajasthan who got ousted from their land falling within the territorial limits earlier with the State of Punjab and then with the State of Himachal Pradesh because of construction of Pong Dam. There was a clear legal right available with such oustees who were in rightful possession of their land from which they were ousted, and the States concerned took up their settlement in Rajasthan fundamentally for the reason that the State of Rajasthan was larger beneficiary of coming into being of Pong Dam. Such oustees were not the encroachers or unauthorised occupants for whose settlement the entire exercise was carried out. 12. Learned Counsel has referred to concluding paragraph 30 in the aforesaid decision of the Honble Supreme Court and it shall be worthwhile to reproduce the same for ready reference:-“30. In its affidavit dated 18.09.1992, the State of Rajasthan has stated that, it had apprehended a hue and cry if the Rajasthanis who had taken lands from the allottees were evicted. Whatever the hue and cry that might arise as a result of having to dispossess Rajasthanis from lands allotted to oustees shall be the direct consequence of the deeds of the State of Rajasthan upon which we have adversely commented. It shall be the duty of the State of Rajasthan to enforce the law, maintain order and ensure that the oustee allottee, his family and his belongings are un-harmed.” 13. It is at once evident that not only the decision in Pong Dam Oustees case does not help the cause of the petitioner; but on the contrary, the principles available therefrom directly operate against the petitioner. It was not the case of the transferees from the oustees-allottees that was countenanced by the Honble Supreme Court, rather their ejectment, if necessary, was approved to ensure that the oustee allottees get their dues. 14. The members of the petitioner-Society being the encroachers on the Government land deserve to make way for planned development of the city; and in any case in this writ petition, directions resulting in maintaining of encroachments cannot be issued so as to deprive the bona fide allottees from the UIT of their land. 15.
14. The members of the petitioner-Society being the encroachers on the Government land deserve to make way for planned development of the city; and in any case in this writ petition, directions resulting in maintaining of encroachments cannot be issued so as to deprive the bona fide allottees from the UIT of their land. 15. Reference to Anil Chordias case (Supra) is also ill-conceived inasmuch as in the said case, the claim was made before this Court to issue a writ to have the persons in unauthorised possession removed and this Court declined to issue a writ for that purpose. Not exercising of discretion under Article 226 of the Constitution of India for issuing any writ or direction for removing a person cannot and does not mean that the converse would become true, that is to say that any encroacher could claim that a writ be issued to maintain his encroachment. We are clearly of the opinion that an encroachment or unauthorised occupation of the Government land does not invest the occupant with any such legal right for whose protection a writ would be issued; nor the rule of law could be compromised merely because the encroachment is said to have multiplied itself . 16. The grounds of adverse possession; or discrimination with reference to regularisation of other Kachi Bastis; or of promissory estoppel are all baseless and need no dilatation in this matter inasmuch as all such grounds are sought to be raised on behalf of the persons who are admittedly in unauthorised occupation of the land in question and, as appears from the facts available on record, a substantial number of encroachments have already been removed. Other grounds sought to be raised in this writ petition regarding invalidity of the scheme or not framing of the scheme in accordance with law are also not available to the members of the petitioner to raise as they have no legal right in the land in question which could be said to be affected because of any alleged irregularity in framing of the scheme. 17. In any case, maintaining of encroachments or the Government land cannot be asked as a matter of right nor such claim could be said to be serving public interest.
17. In any case, maintaining of encroachments or the Government land cannot be asked as a matter of right nor such claim could be said to be serving public interest. A Public Interest Litigation ought to have the essential feature that it serves the cause of public and the claim of certain persons, even if they are able to multiply in numbers, to maintain encroachment on the Government land cannot be said to be serving public cause. 18. For the reasons aforesaid, we are satisfied that this writ petition does not disclose any public interest; the cause suggested herein cannot be approbated; and the reliefs claimed herein cannot be granted. 19. The writ petition fails and is, therefore, dismissed. No costs.