Ram
Prasad Yadav & Ors Vs. Chairman, Bombay Port Trust & Ors [1989] INSC 104 (29 March 1989)
Pathak,
R.S. (Cj) Pathak, R.S. (Cj) Kania, M.H.
CITATION:
1989 SCALE (1)716
ACT:
Constitution
of India 1950: Article 136. Problem of
hutment dwellers--A human problem--removal of hutments--Causes untold hardship
and misery--Provision of alternative sites--Whether a condition precedent.
Practice
and Procedure: Hutment dwellers--Removal of--Appointment of Commission for
identification of benefi- ciaries in terms of 'cut off date fixed by interim
order of Court--Whether ground for extending 'cut off date.
Bombay Rents, Hotels and Lodging Houses
Rates (Control) Act, 1947--Applicability of--To Bombay Port Trust Lands.
HEAD NOTE:
In May
1985, some of the hutments in the Bombay Port Trust lands were cleared by the
Port Trust and these hut- ments were demolished. The petitioners filed a writ
petition in the Bombay High Court for restraining the Bombay Port Trust from
carrying out any further demolition of the hut- ments. The writ petition was
dismissed by a Single Judge of the High court. An appeal preferred against the
order of the Single Judge was dismissed by a Division Bench. Hence the appeal
by special leave to this Court.
By an
interim order dated 27th January 1986 a Division Bench of this Court fixed a
cut off date as January 1, 1981 for the purpose of granting relief in the form
of providing alternative sites to the hutment dwellers and directed that those
hutment dwellers who have been continuously in occupa- tion for at least two
years prior to January 1, 1981 shall not-be thrown out unless and until,
alternative sites are provided to them for occupation. A Commission was also
appointed to identify the persons who were eligible for alternative sites in
terms of the aforesaid interim order.
In its
report submitted on 4th
November 1986, the
Commission pointed out that only 50 hutment dwellers could satisfy the
Commission that they were living on the site for a period of two years prior to
the cut off date. The other hutment dwellers were unable to do so.
174 It
was contended on behalf of the petitioners that
(i) in
view of the time which has gone by, cut off date fixed by this Court should be
extended, and
(ii) the
policy of the State of Maharashtra was not to evict unauthorised
occupants on public lands except after providing them alternative
accommodation.
Disposing
of the special leave petition, it was,
HELD:
1. The problem of hutment dwellers is a human problem and the removal of
hutments is bound to cause an untold hardship and misery to the occupants.
However, on that consideration, the Bombay Port Trust cannot be prevent- ed
from putting its land to its own use. [178C]
2.
Once the cut off date has been fixed by this Court, there is no basis for
extending the cut off date merely because time has gone by since that would
render the entire task given to the Commission futile. Moreover, doing so would
run counter to the intention of this Court in making the aforesaid order which
was to protect only those hutment dwellers who had been in occupation for at
least two years prior to 1.1.1981. In view of the fact that no policy state- ment
of the Government of the State of Maharashtra was pointed out it cannot be taken into account. Moreover,
the Port Trust land cannot be regarded as public land in occupa- tion of the
Government, either the Central Government or the State Government. [177E-H]
2.1.
Under the circumstances, directed that the said 50 hutment dwellers along with
their families who had been identified by the Commission as having occupied the
said hutments for two years or more prior to the cut off date, namely,
1.1.1981, shall not, be removed from their hutments and their hutments shall
not be demolished except after provision of alternative sites for them. The
Port Trust will be at liberty to remove these hutments after giving alterna- tive
sites to these hutment dwellers. [177H; 178A-B]
3. It
is not possible for this Court to say whether there would be a greater injury
to public interest by the removal of the unauthorised hutment dwellers or by
prevent- ing the Port Trust from putting its own land to a proper use. [178C-D]
4. The
State Government or the Central Government or even the Bombay Port Trust may
make some provision for providing alternative sites at least to some of these
hut- ment dwellers. However, 175 the provision of such alternative sites is not
made a condi- tion precedent to the removal of the hutment dwellers or the
hutments in question other than those who are entitled to protection on the
basis set out earlier.
CIVIL
APPELLATE JURISDICTION: Special Leave Petition (Civil) No. 7883 of 1985.
From
the Judgment and Order dated 24.5.1985 of the Bombay High Court in Appeal No.
461 of 1985.
M.C. Bhandare,
G.S. Chatterjee and Ms. C.K. Sucharita for the Petitioners.
B. Datta,
G. Ramaswamy, Additional Solicitor Generals, A.S. Bhasme, Praveen Kumar, R.P. Srivastava,
Mrs. Sushma Suri, U.J. Makhija, B.S. Bhasania, Mrs. A.K. Verma, and Turn Bangs
for the Respondents.
The
Judgment of the Court was delivered by KANIA, J. Heard Counsel.
This
is a Petition under Article 136 of the Constitution for special leave to appeal
against a judgment and order of a Division Bench of the Bombay High Court dated
May 24, 1985.
Original
Petitioner No. 1 who is dead was a hutment dweller and Petitioner No. 2 is a Union representing hutment dwellers having their hutments
in lands belonging to the Bombay Port Trust. Respondents Nos. 1 to 3 to the
petition are the Chairman of the Bombay Port Trust, Union of India and the
State of Maharashtra respectively.
Some
of the hutments in the Bombay Port Trust lands were cleared by the Bombay Port
Trust in the first part of May 1985 and these hutments were demolished. The
Petitioners filed a Writ Petition No. 992 of 1985 on the Original Side of the
Bombay High Court inter alia for restraining the Bombay Port Trust from
carrying out any further demolition of hutments and asking for several other reliefs.
A
learned Single Judge of the Bombay High Court in his judgment and order dated
May 15, 1985 disposing of the petition pointed out that the Petitioners'
Counsel was unable to point out any legal 176 fight in the petitioners. The
property admittedly belongs to the Bombay Port Trust and the provisions of the
Bombay Rents, Hotels and Lodging House Rates (Control) Act, 1947 are not
applicable to the said property. The learned Judge further pointed out that
although the petitioners claimed that there was some policy of the State
Government for providing alternative accommodation before the hutments on
public lands were demolished, no statement of any such policy was brought to
the attention of the Court and the learned Counsel for the State denied that
there was any such policy for the Bombay Port Trust lands. The learned Judge
dismissed the writ petition but directed that status quo should be maintained
till and inclusive of 30th May, 1985 on certain conditions. The Petitioners
preferred an appeal against the said order which was dismissed by a Division
Bench of the Bombay High Court by the order sought to be impugned before us.
Certain
interim orders were passed in the said Petition from time to time with which we
are not concerned. By an order dated January 27, 1986 a Division Bench of this
Court comprising Bhagwati, C.J. and Oza, J. observed that as far as they
gathered, about 406 families were involved in the operation relating to the
removal of unauthorised hutments on the lands of Bombay Port Trust. They also
observed that it was fair and just that some alternative land sites be provided
to those who have been continuously in occupation since at least two years
prior to a cut off date, fixed by them as January 1, 1981 should be provided
with alternative sites before being thrown out of the said land and directed
that those hutment dwellers who have been in occupation of the Bombay Port
Trust lands along with their families for the said period, shall not be thrown
out unless and until, as a condition precedent, alternative sites are provided
to them for occupation. The Division Bench appointed a Commission for the
purposes of inquiring and determining as to which of the persons whose names
and addresses were given in the affidavit filed on behalf of the petitioners
were in occupation of hutments in the Bombay Port Trust lands for at least two
years prior to January 1, 1981. A plain reading of the said order makes it
clear that the State Government was directed to provide alternative sites only
to those hutment dwellers who were ultimately found entitled to protection as
being in occupation for the period set out earlier i.e. two years prior to the
cut off date. The Commission appointed by this Court submitted its Report on
November 4, 1986. The Commission pointed out that out of 411 families mentioned
in the affidavit filed on behalf of the Petitioners, the Com- mission could
make an inquiry in regard to 302 hutment 177 dwellers. 59 of them had already
left for Govandi a place in Bombay where alternative sites were presumably
allotted to them and the Commission held that these persons were not staying on
the Bombay Port Trust lands. The Report makes it clear that inquiry could not
be made with certain persons mentioned in the affidavit as they were not
available for inquiry despite the fact that the Commission visited the sites at
least six times and spent considerable time there.
Out of
the persons concerned, the Commission found-that, on the evidence, only 50
hutment dwellers with their families could satisfy the Commission that they
were living on the site for a period of two years prior to the cut off date,
namely, 1.1.1981. The other hutment dwellers were unable to satisfy the
Commission with their evidence. The commission- er, however, stated that it was
possible that some of these persons, who had been unable to establish their residence
for the aforesaid period, might have been unable to do so because of their
poverty, lack of literacy and want of documentary proof.
It is
after that making of this Report that the matter has come up before us. As far
as we can see, in view of the aforesaid order of this Court, the main task
before us is to implement that order.
It was
contended by Mr. Bhandare, learned Counsel for the Petitioners that although
the cut off date was fixed as 1.1.1981, we should extended the cut off date in
view of the time which has gone by. He further contended that there was a
policy of the State of Maharashtra not to evict un authorised
occupants on the public lands except after providing them alternative
accommodation. We are unable to accept the submissions of Mr. Bhandare. Once
the cut off date has been fixed by this Court by the aforesaid order, there is
no basis for extending the cut off date merely because time has gone by since
that order because that would render the entire task given to the Commission
futile. Moreover, doing so would run counter to the intention of this Court in
making the aforesaid order which was to protect only those hutment dwellers who
had been in occupation for at least two years prior to 1.1.1981. Although the
policy of the Government of the State of Maharashtra was referred to, no policy statement was pointed out to us
and the learned Counsel for the State of Maharashtra made it clear that no such policy would be applicable to
the Bombay Port Trust lands. In view of this, we are unable to take into
account any alleged policy of the State. Moreover, the Port Trust land cannot
be regarded as public land as being in the occupation of the Government, either
the Central Government or the State Government. Under the circumstances, we
direct that the said 50 hutment 178 dwellers along with their families who had
been identified by the Commission as having occupied the said hutments for two
years or more prior to the cut off date, namely, 1.1.1981, shall not be removed
from their hutments and their hutments shall not be demolished except after
provision of alternative sites for them. As already directed by the earlier
order, the duty of carrying out this task is imposed on the State of Maharashtra
but, even if either the Central Government or the Port Trust is able to give
alternative sites to these hutment dwellers, the Port Trust will be at liberty
to remove these hutments.
We realise
that the problem of hutment dwellers is a human problem and the removal of
hutments is bound to cause an untold hardship and misery to the occupants.
However, on that consideration, we cannot prevent Bombay Port Trust, from
putting its land to its own use. It is not possible for this Court to say that
whether there would be a greater injury to public interest by the removal of
the unauthorised hutment dwellers or by preventing the Port Trust from put-
ting its own land to a proper use. In order to obviate the hardship referred to
earlier, although to a limited extent, we direct that even the hutments on the
said lands which are not entitled to protection, will not be demolished for a
period of six months from the date of signing of this order.
We
only hope and trust that it will be possible for the State Government or the
Central Government or even the Bombay Port Trust to make some provision for
providing alternative sites at least to some of these hutment dwellers, if not
all. However, we make it clear that the provision of such alternative sites is
not made a condition precedent to the removal of the hutment dwellers or the
hutments in question other than those who are entitled to protection on the
basis set out earlier.
The
Special Leave Petition is disposed of by this order.
There
will be no order as to costs.
T.N.A.
Petition disposed of.
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