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2021 DIGILAW 986 (GUJ)

RASHIDABANU NAZIR SHAIKH v. CENTRAL RAILWAYS

2021-10-25

ASHUTOSH J.SHASTRI

body2021
ORDER : 1. By way of this Special Civil Application under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs : “8{A} Your Lordships may be pleased to issued a writ of Mandamus or writ in the nature of Mandamus or any other writ order of direction quashing and setting aside the public notice dated 06.02.2020 affixed by the respondent no. 1 as being illegal and against the provisions of the Act; ({B} Your Lordships may be pleased to issued a writ of Mandamus or writ in the nature of Mandamus or any other writ order of directing the respondents to give opportunity of hearing to the petitioners; {C} Your Lordships may be pleased to issued a writ of Mandamus or writ in the nature of Mandamus or any other writ order of directing the respondents to provide alternative residential arrangements and further be pleased to direct the respondents to immediately give compensation to the petitioners. {D} Any other and further relief as it deemed fit and proper may be passed. 2. The case of the petitioners is that the petitioners are residing at the address mentioned in the cause title since about more than 35 years and are belonging to lower middle class of society. The petitioners are possessing the rent receipts as well as the tax bills, which are being regularly paid to the respondent- Corporation and are also having Adhar Card. The fact regarding payment of electricity bill in all these petitioners, majority of them are senior citizens residing with their families. The Public Notice dated 06.02.2020 has been pasted on the house, indicating the petitioners to vacate the premises within 20 days or else the respondent No.1-Railway Authority will demolish the portion, which is offending. The case of the petitioners that though the public notice was issued but no individual notices have been issued to the petitioners. On the contrary, petitioners are provided with electricity connection having drinking water facility and in view of the fact that petitioners are residing since number of years, opportunity of hearing ought to have been given. As a result of this, by way of this petition, a challenge is made to the public notice dated 06.02.2020. 2.1. On the contrary, petitioners are provided with electricity connection having drinking water facility and in view of the fact that petitioners are residing since number of years, opportunity of hearing ought to have been given. As a result of this, by way of this petition, a challenge is made to the public notice dated 06.02.2020. 2.1. Pursuant to the notice having been issued by the court in the Month of December, 2020, by directing the respondents to maintain status quo, the Railway Authorities and respondents have appeared and contesting party i.e. respondent No.4 has submitted a detailed affidavit-in-reply and after having noticed that for a pretty long period, the interim relief is operative, the request is made to take up the matter for hearing as for the purpose of safety and security, the public land deserves to be vacated, to the extent which the petitioners have encroached. With these backgrounds, the petition is taken up for hearing, in which the learned advocate Mr. R.M. Parmar appearing for the petitioners has submitted written submissions in addition to what has been stated in the petition. Much emphasize is made by the learned advocate is to the effect that no individual notices have been given and as such, action of uprooting the petitioners is in violation of principles of natural justice. It has been stated before the Court that the petitioners are residing since number of years and as such, they are paying regularly the tax, the electricity bills and charges related to other amenities, no action be initiated. In substance, the learned advocate for the petitioners has projected that they have got a fundamental right to stay on the premise/land, where they are residing and as such, the relief prayed be granted in the interest of justice. 3. As against this, learned advocate Ms. Archana U. Amin appearing on behalf of the respondent No.2 contesting party has submitted a detailed affidavit-in-reply indicating that these petitioners have extended their construction beyond the Railway Polls whereon WR is written. The petitioners have crossed the boundary limits and entered into the Railway premises for which, they have got no right whatsoever. Merely because the petitioners are residing for quite some time, would not give licence to them to continue over the property for which they have absolutely no right. From the detailed affidavit, few observations contained therein are quoted hereunder: . “3. Merely because the petitioners are residing for quite some time, would not give licence to them to continue over the property for which they have absolutely no right. From the detailed affidavit, few observations contained therein are quoted hereunder: . “3. I state that the public notice is given for removal of encroachment over the Railway land and not for evicting the petitioners from unauthorised occupation of Railway property. The petitioners are residing at a place named Chakubhai/Makubhai Ni Chali which is situated adjoining to Railway land and they have extended their construction by few feets covering the Railway land. Therefore, the notice is given for removal of that portion of construction illegally covering the Railway land and not otherwise. 4. So far as paragraph 1 is concerned, it is stated that the public notice dated 6/2/202 was affixed informing the petitioners to remove the encroachment near Anmedabad-Sabarmati Gauge Line No. 3 between 783/9-13 as the petitioners have illegally extended the construction covering a portion of the Railway land. However, instead of removing the encroachment within the time of 20 days, the petitioners have challenged the Notice before this Hon'ble Court. A copy of the Public Notice dated 6/2/2020 is already annexed with the petition at Annexure A and I crave leave to refer to and rely upon the same. The area of Railway land encroached upon by the petitioners is of few feets. Annexed hereto and marked as Annexure I is the copy of lay out plan showing the area of encroachment in Red Ink over the Railway land near the Broad Gauge Line No.3. 5. So far as paragraph 2.1 is concerned, it is stated that the petitioners are residing at a place adjoining to the Railway land. The petitioners are possessing the rent receipt and tax bills issued by the Corporation, electric bills, Adhar Card issued in the name of the petitioners reflect the place of their residence. Since their residences are just adjoining to the Railway land, they have extended the area for their own use and benefits over the adjoining Railway land. Annexed hereto and marked as Annexure II Colly. are copies of photographs showing the encroachment over Railway land. A close perusal of the above annexed photographs makes it clear that the petitioners have extended their construction beyond the Railway Polls whereon WR is written. Annexed hereto and marked as Annexure II Colly. are copies of photographs showing the encroachment over Railway land. A close perusal of the above annexed photographs makes it clear that the petitioners have extended their construction beyond the Railway Polls whereon WR is written. Railway Polls are placed on the boundary of the Railway land. For removal of this extra coverage by the petitioners, Public Notice is given to them. The Railways have no grievance with the residence of the petitioners so far as the same is beyond the permissible distance from the Railway land. The objection is for the illegal extension within the Railway boundary. 6. So far as paragraphs 2.2 and 2.3 are concerned, it is stated that the petitioners are paying the tax for their residence only i.e. the area legally owned by them. The tax bills are not for the area of Railway land encroached upon them. From the Annexure I and more particularly from the photographs placed on record as Annexure II Colly. above, it becomes crystal clear that the petitioners have encroached upon the Railway land by few feets. 7. So far as paragraph 2.4 is concerned, it is reiterated that the Public Notice is for removal of the encroachment only made by the petitioners over the Railway land. Merely because the petitioners are staying in their respective houses since years with encroachment over Railway land, the same can never be said to be valid reason for not taking action for their removal from the encroached area of Railway land. 8. So far as paragraphs 3 and 4 are concerned, it is stated that the electricity connection is given to the petitioners for their houses. Similarly property tax is levied for their houses. But this does not imply that they have not encroached upon the adjoining Railway land when the photographs placed on record as Annexure II colly. clearly shows encroachment. The reasonable opportunity of hearing is required to be given when the petitioners are sought to be evicted from their residences. Therefore, there is no question of any demolition of petitioner's houses or the petitioners being without any shelter. The action of giving Public Notice for removal encroachment is legal and valid. Moreover, with all fairness in action, the petitioners have been given enough time of 20 days to remove the encroachment. 9. Therefore, there is no question of any demolition of petitioner's houses or the petitioners being without any shelter. The action of giving Public Notice for removal encroachment is legal and valid. Moreover, with all fairness in action, the petitioners have been given enough time of 20 days to remove the encroachment. 9. So far as paragraphs 5 to 7 are concerned, the same require no comment. And in view of what is stated herein above, none of the prayers as prayed for in paragraph 8 is required to be granted." 4. By projecting aforesaid circumstances, it has been contended by learned advocate Ms. Amin that these petitioners are unauthorizedly occupying the place, portion of Railway properties and as such, are not inclined to seeks any relief as of right and in any case, reasonable time has already been granted to the petitioners. Hence the petition being merit-less, does not deserve to be entertained. 5. Learned advocates on both the sides have submitted that in a recent decision reported in 2021(0) AIJEL-HC 243173, in which, in Public Interest Litigation, the Western Railways were allowed to go ahead with the completion of Project expeditiously and it has been observed that persons, who are to be affected, if eligible, may be considered appropriately by the authority and Public Interest Litigation came to be disposed of. 6. Having heard learned advocates appearing for the respective parties and having gone through the material on record, it is prima facie clearly visible that over the land in question, the petitioners have no rights title or interest and mere occupation of the land without any title will not in any way create any absolute right in favour of the petitioners to continue to occupy. By brief averments in the petition, the only substantial contention is that the action is violative of the principles of natural justice, in view of the fact that no individual notices have been given but in the considered opinion of this Court, the principles of natural justice cannot be stretched to that extent that it may become an unruly horse as held by one of the decisions delivered by the Apex Court. Here in the case on hand, the petitioners have been specifically put to notice about their unauthorized occupation. They have been informed that they have crossed the Railway Polls, which are implanted to indicate that the property belongs to the Railway. Here in the case on hand, the petitioners have been specifically put to notice about their unauthorized occupation. They have been informed that they have crossed the Railway Polls, which are implanted to indicate that the property belongs to the Railway. It appears that the petitioners have crossed the boundary knowingly or unknowingly. The fact remains that over the portion of land, there is no remote right of the petitioners as can be seen from even averments of the petition and as such, looking to the detailed affidavit, which has been filed by Railway authorities and considering the contents stated therein, this Court is not inclined to exercise any equitable jurisdiction in favour of the petitioners, more particularly when the reasonable time to that effect that has already been granted. Further more, these petitioners have placed the property in such a encroached manner that the land in question is situated at Ahmedabad, Sabarmati Line No.3 near meter gauge 783/9-13 Kilometers is affected and as such, on the contrary for the safety and security of the petitioners and their family may put to danger and from that context also their encroachment crossing the Railway Polls deserves to be removed. Hence, no case is made out by the petitioners to call for any interference. Payment of tax, electricity charges etc. would not confer any absolute right to the land in question and on the contrary unauthorized occupation deserves to be cleared especially when it comes to the properties belonging to the Government or the Railway Authorities. Hence, no relief deserves to be granted in favour of the petitioners. 7. However, while parting with this order, it is made clear that the Railway authorities may clear the alleged encroachment of the petitioners from the land, which is belonging to the Railway Authorities and crossing the Railway Polls since the impugned notice is given by Railway authorities. 8. With these clarification, the present petition stands dismissed with no order as to costs. Notice is discharged. Ad-interim relief, if continued, stands vacated forthwith.