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Allahabad High Court · body

2010 DIGILAW 983 (ALL)

KALLU v. VARANASI DEVELOPMENT AUTHORITY

2010-03-25

S.K.SINGH, Y.C.GUPTA

body2010
JUDGMENT By the Court.—A mention was made that matter is extremely urgent as there is a threat of immediate forceful eviction. 2. In view of the aforesaid mention, the case was called and that was taken up in presence of Sri Ajeet Kumar Singh, learned Advocate who appears for the authority and Sri Wasim Alam, learned Standing Counsel. 3. Heard Sri Prakash Padia, learned Advocate in support of this petition and the learned counsel who appeared for the respondents. 4. Prayer in this petition is for a direction to the respondents not to evict the petitioners from the premises in question except in accordance with law. 5. There is a further prayer that respondents be directed to comply with the provisions of Section 26-A(4) of the U. P. Urban Planning and Development Act, 1973 (hereinafter referred to as the Act) read with Government Order dated 13.3.1992 issued by the State Government. 6. Submission is that petitioners are in possession over their respective space and thus without any individual notice and opportunity, in violation of the provisions of Section 26-A (4) of the Act they cannot be evicted and thus the entire exercise besides being illegal is in violation of principles of natural justice. 7. Learned counsel placed before the Court the details of the earlier litigation and the provisions as contained in Section 26-A (4) of the Act. 8. Submission of the petitioners side was opposed by the respondents and it is pointed out that all the petitioners are rank trespassers and on the facts they are not entitled for any protection and the cry of violation of principles of natural justice is not to be stretched and extended for such kind of class as that will not be in the public interest. 9. Submission is that the petitioners are not entitled to get the discretion of this Court in its extraordinary powers. 10. This petition is by 98 petitioners and all of them claim to be in possession of the piece of land and they claim to be living in “jhuggi jhopari” as exists on the spot. 11. 9. Submission is that the petitioners are not entitled to get the discretion of this Court in its extraordinary powers. 10. This petition is by 98 petitioners and all of them claim to be in possession of the piece of land and they claim to be living in “jhuggi jhopari” as exists on the spot. 11. There is no dispute about the fact that as far back as in the year 1999, these very petitioners filed a writ petition i.e. writ petition No. 11718 of 1999 claiming their rights over the land and this Court on 21.7.1999 disposed of the writ petition by giving direction to the development authority to decide the petitioners claim in accordance with law. Besides the writ petition filed by the petitioners the present respondent No. 5 who is Avas Samiti also filed a writ petition in this Court i.e. writ petition No. 2033 of 1999 in relation to encroachment by the petitioners and that was also directed to be disposed of on 18.1.1999 directing the respondents to decide the matter in accordance with law. Admittedly the Commissioner of the Division by the order dated 8.9.1999 decided the claim of the petitioners by passing a detailed order. It is not in dispute that order of the Commissioner who is the Chairman of the development authority, referred above, is in the knowledge of the petitioners from that very time but that was never challenged either at that time or even at present. 12. In view of the facts which are on record and otherwise also there is absolutely no doubt/dispute that all the petitioners are rank trespassers and they claim to have occupied the public utility land as the respondents claim the land to be a road side land, patri land causing great inconvenience in the smooth flow of the traffic, causing in convenience to the bonafide residents of the locality. 13. It is the matter of notice/knowledge that these kind of encroachers around railway station, by the side of the railway line (near the city) at the public places causing serious type of obstruction in the smooth flow of the traffic, besides the law and order problem and huge discomfort to the bonafide movers to the residents gradually takes their growth. It is the matter of notice/knowledge that these kind of encroachers around railway station, by the side of the railway line (near the city) at the public places causing serious type of obstruction in the smooth flow of the traffic, besides the law and order problem and huge discomfort to the bonafide movers to the residents gradually takes their growth. In the name of notice and opportunity by showing their strength as a weaker Section, sometimes backed by political persons, the administration finds it to be great/uphill task in removing them and getting the public utility land released from their clutches. Sometimes it is found that some land mafias and other kind of muscleman are party in the garb of injustice with the weaker class as a proxy to the entire issue and they operates behind the curtain. It goes without saying that land at the places where such kind of encroachers are there as on date is valued not only in yards, feets rather they may be in inches also. Such kind of highly valuable land at the cost of inconvenience and discomfort to the bonafide people, as a charity, unless on the facts and in given set of situation is workable to be settled is not to be extended and that too at the level of the Courts. 14. At one place we talk about widening of the roads looking into the bulk of traffic move, number of vehicles and to protect the huge crowd from being detained for hours and hours resulting into destruction of their important and urgent work, sometime leading to very painful situation and at the same time we are to permit these kind of things to continue even if no extra space for doing the charity is available and thus the balance will have to struck even by the Government, by the administration and so far the Courts are concerned while granting relief in this respect and all caution will have to be taken. 15. If the availability of the space for the purpose of rehabilitation is there and a particular class in some Government policy is to be rehabilitated then we are not to come into way but this can be all said to be concern of the executive agency and the administration and the Courts cannot be expected to be a substitute for this. Sometimes these kind of encroachers poses a great risk to the peace, law and order, various kind of crime and thus that can also be kept in mind. 16. Here is the case where the petitioners successfully involved all concerned at least since about 11-12 years in the name of the litigation and on the pretext of consideration of their claim. The writ petition came to be filed in this Court by these very petitioners in 1999 and at the same time the respondent No. 5 also filed a writ petition against the petitioners in the year 1999 itself. This Court directed the development authority to look into the matter in the light of the Government Order of the year 1992. 17. Now we are to examine the order of the Chairman, Development Authority which has been passed pursuant to the direction given by this Court in two writ petitions. The order of the Commissioner of the Division can be said to be a very exhaustive, considered and after taking note of the grievance of the petitioners, the respondent No. 5 and dealing with the Government Order in the light of the nature of possession and right of the petitioners. In spite of the order being in the knowledge of the petitioners they did not challenge it since last 11 years and thus as on today we are to take the findings so recorded in the order to be correct and as it is. 18. Learned Commissioner of the Division examined the claim of the petitioners of their long living, belonging to the weaker class and their rights in view of the Government Order of 1992. The objection of respondent No. 5 that over public utility land petitioners have encroached and when the bonafide colony came into existence none of the petitioners were available at that time was also taken note. 19. After considering the facts and details from all concerned the findings recorded by the Commissioner of the Division can be summarised to the following effect : (i) The land which is being claimed by the petitioners has been shown in the map and also in the Master Plan as the road. (ii) Part of the land is mentioned as road patri. (iii) None of the claimant gave any evidence by which their possession since last 30 years as claimed can be found. (ii) Part of the land is mentioned as road patri. (iii) None of the claimant gave any evidence by which their possession since last 30 years as claimed can be found. (iv) The Samiti was allotted the land and the road/patri and residents were permitted to use the land as it is and thus the claimants appear to have encroached the land recently. (v) Some kind of civil amenities might have been obtained by the petitioners by not placing the correct facts and by misleading the authorities. (vi) The policy of the Government for settling some rights with the “jhuggi jhopari” owners may not apply as the land over which the possession is being claimed is the land of the road and the patri which can be said to be the part of the road and this land is not meant to be settled. (vii) The land over which possession is being claimed by the petitioners being of the road side land it will not come within the policy of the Government. 20. A civil suit was also filed by the petitioners side against the respondents against demolition/eviction but that was also dismissed on 28.11.2001 for want of Court fee after its pendency for quite number of years. 21. Reliance has been placed by the petitioners side to the provisions of Section 26-A(4) of the Act. On a further study of the provisions takes the Court to Section 26 B of the Act which states that any person aggrieved by the removal of the obstruction or encroachment may prefer a claim before the Tribunal. 22. On the facts and circumstances of the case, there is no dispute about the fact that petitioners are encroachers and they are rank trespassers over the public utility land i.e. road and road side patri and they have engaged the Court and the judicial process since last more than 10 years and they are not entitled to get any indulgence, specially in view of the fact that pursuant to their own move and the orders of this Court the Commissioner of the Division decided the controversy by order dated 8.9.1999 and petitioners did not challenge the same. 23. This Court exercises the equity powers under its extraordinary jurisdiction and that too when no recourse is available to the petitioners. Here is a case where petitioners have filed suit, which too was dismissed. 23. This Court exercises the equity powers under its extraordinary jurisdiction and that too when no recourse is available to the petitioners. Here is a case where petitioners have filed suit, which too was dismissed. Commissioner of the Division decided the matter and the development authority was asked to do needed exercise but the petitioners never pursued the matter and they never filed any petition seeking a direction to the respondents for doing the needful if that is permitted in law, in view of the Government policy and, therefore, as on today this Court finds that if no final relief on the facts so stated in the writ petition can be given then this Court is not meant only just to grant interim protection. 24. It is always open for the petitioners to approach the concerned competent official and if so advised to the State Government with a request to take care of their own scheme/policy and needed consideration may take place but so far the land covered by the road and the road side patri is concerned no relief by means of this writ petition can be given. 25. For the reasons given above, this Court has to decline. 26. Writ petition accordingly fails and is dismissed, however, with the liberty so available to the petitioners and in the light of the observations made above. ————