Rajo Ransingh Tak v. Union of India & Ors.

5. Definition of Project Affected Persons (PAP): Project Affected Person includes households, business units including their workers and owners of assets like land and buildings affected by MUTP shall be considered as PAPs and may include: non-resident land owners (including farmers and horticulturist); non-resident lessees; resident landlord {including farmers and horticulturists); resident lesseeresident lessees, tenants or sub-tenants of buildings; squatters (non-resident structure owners, resident structure owners, tenants); pavement dwellers. Household, for this purpose, means all males/females, their family members and relatives, staying in a house/tenement/hut.

6. Eligibility of Project Affected Persons (PAPs) for R & R: (a) All legitimate occupants of land and buildings affected by MUTP up to the time of actual resettlement will be eligible for the benefit of the R & R Policy. However, PAPs who are squatters and not the legitimate occupants of, and/or buildings shall be eligible for R & R only if enumerated during the baseline survey. The date of completion of the baseline survey shall, therefore, be the cut-off date. While preparing the Resettlement Action Plan (RAP), the baseline survey will be updated if the gap between the baseline survey and the RAP is more than one year. Any new unauthorised structures or additions to existing structures carried out after the cut-off date, and their occupants, will not be eligible for R & R. Similarly, the occupants of a structure, except legal heirs who have acquired the structure after the cut-off date, shall not be eligible for the benefits of Resettlement and Rehabilitation. However, member added to the eligible households by way of birth and marriage after the cut-off date will be considered eligible for R & R. For this purpose, the baseline survey will create a detailed data base available with both the R & R Agency and the affected community. The significance of the cut-off date will also be explained to the community. (b) PAPs who do not wish to participate in the RAP prepared in the manner as laid down in this policy will not be eligible for rehabilitation and will have to vacate the occupied space on their own.

(c) Aerial photographs …………….

7. Selection of Resettlement Site: The site for resettlement shall be selected out of the feasible options in consultation with the affected community as a part of the RAPs preparation. The principal criteria for site selection shall include access to employment opportunities, infrastructure and social services. Environmental assessment of the resettlement site shall be carried out as part of the preparation of the CEMPs.

17. Indirectly Affected PAPs: The relocation of affected communities and persons may have an adverse impact on the community linkages at the old site. In order to minimise such adverse impact, appropriate and careful measures need to be planned. For this purpose, the affected community be identified based on the social and economic linkages and not purely on the basis of right of way required for the project. If the social and economic linkages are substantially affected, the remaining people, whose proportion should not exceed 20% of the directly affected PAPs. If they desire should be resettled along with the PAPs. However, if the remaining people do not desire to shift, efforts shall be made to provide earlier social and economic facilities at the old site.”

12. As such, he submitted that as per the guidelines set out in the Government Resolution dated 12th December 2000, the Petitioners qualifies as Project Affected Persons (for short, ‘PAP’) under Phase I/II of the Mumbai Urban Transport Project (for short, ‘MUTP’) and, in terms of Clauses 7.[2] and 7.2.[2] of the Corporate Plan 2014–2034 (Revised November 2017), are therefore entitled to rehabilitation.

13. He further argued that even assuming that the Petitioners are the squatters, they have been in occupation of the Writ Premises since 1980 and are, therefore, eligible for Rehabilitation and Resettlement (R&R) benefits. However, the Estate Officer failed to take into consideration the relevant Government Resolution and did not declare the Petitioners eligible under the R&R policy. Consequently, he contends that the order/s passed by the Estate Officer is/are illegal and contrary to the Government Resolution, and that they are entitled to rehabilitation under the applicable policy.

14. Per contra, the learned Advocate for the Corporation strenuously opposed the Petition, contending that the Petitioners are neither PAP nor are their Writ Premises/structures situated within 10 meters from the 6th Railway Line, Mumbai Central–Borivali. Furthermore, the Writ Premises do not fall within the scope of the scheme formulated by the Respondent–Western Railways for the rehabilitation of affected persons. Accordingly, he submitted that the Petitioners are not entitled to claim benefits under the Government Resolution dated 12th December 2000.

15. He further canvassed that the Respondent–Railway Authorities, by following due process of law, issued notices to the unauthorised structures under the provisions of the Act of 1971. Also, ample opportunity to be heard was given to the Petitioners, and the Authorities then passed the impugned order (s). Hence, the Petitioners are not entitled to the relief sought, and accordingly, he urged that the Writ Petitions be dismissed.

16. While dealing with the controversy in the matter, we would like to state that the Act of 1971 was enacted with the object of remedying the shortcomings noticed in the earlier legislative framework and to provide a speedy and summary mechanism for the eviction of persons in unauthorised occupation of public premises. The statute is a special enactment designed to ensure expeditious removal of unauthorised occupants from such premises. The expression “public premises” is defined under Section 2(e) of the Act. The term “unauthorised occupation” is defined under Section 2(g). Section 4 empowers the Estate Officer, if he is of the opinion that any person is in unauthorised occupation of public premises, to issue a notice calling upon such person to show cause why an order of eviction should not be made. Under Section 5, upon consideration of the cause shown and the evidence produced in response to the notice issued under Section 4, and if satisfied that the premises are in unauthorised occupation, the Estate Officer may pass an order of eviction. Further, Section 5A provides for the removal of unauthorised constructions erected on, or against, or in front of any public premises.

17. In the context of the batch of Writ Petitions, it would be appropriate to reproduce the relevant statutory definitions and provisions, particularly Sections 2(e), 2(g) and 5A: “2(e) “public premises” means- (1) any premises belonging to, or taken on lease or requisitioned by, or on behalf of the Central Government, and includes any such premises which have been placed by that Government, whether before or after the commencement of the Public Premises (Eviction of Unauthorised Occupants) Amendment Act, 1980 (61 of 1980), under the control of the Secretariat of either House of Parliament for providing residential accommodation to any member of the staff of that Secretariat; (2) any premises belonging to, or taken on lease by, or on behalf of,-

(i) any company as defined in section 3 of [the

Companies Act, 2013 (18 of 2013)], in which not less than fifty-one per cent of the paid-up share capital is held by the Central Government or any company which is a subsidiary (within the meaning of that Act) of the firstmentioned company;

(ii) any corporation (not being a company as defined in section 3 of the 3[the Companies Act, 2013 (18 of 2013)], or a local authority) established by or under a Central Act and owned or controlled by the Central Government;

(iii) any company as defined in clause (20) of section 2 of the Companies Act, 2013 (18 of 2013), in which not less than fifty-one per cent. of the paid-up capital is held partly by the Central Government and partly by one or more State Governments, and includes a company which is a subsidiary (within the meaning of that Act) of the first-mentioned company and which carries on the business of public transport, including metro railway. 2(g) “Unathorised occupation”, in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises, has expired or has been determined for any reason whatsoever. 5A. power to remove unauthorised constructions, etc.- (1) No person shall— (a) erect or place or raise any building or [any movable or immovable structure or fixture,] (b) display or spread any goods,

(c) bring or keep any cattle or other animal, on, or against, or in front of, any public premises except in accordance with the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy such premises. (2) Where any building or other immovable structure or fixture has been erected, placed or raised on any public premises in contravention of the provisions of sub-section (1), the estate officer may serve upon the person erecting such building or other structure or fixture, a notice requiring him either to remove, or to show cause why he shall not remove such building or other structure or fixture from the public premises within such period, not being less than seven days, as he may specify in the notice; and on the omission or refusal of such person either to show cause, or to remove such building or other structure or fixture from the public premises, or where the cause shown is not, in the opinion of the estate officer, sufficient, the estate officer may, by order, remove or cause to be removed the building or other structure or fixture from the public premises and recover the cost of such removal from the person aforesaid as an arrear of land revenue. (3) …………….

18. On perusal of the record, it is apparent that the Respondent–Railways, after noticing the unauthorised structures, the Estate Officer issued a notice U/s 5A (2) of the Act of 1971, directing the Petitioners to vacate the Writ Premises within a period of 15 days. The Petitioners duly replied to the notice/s. However, the Petitioners failed to produce any documents before the Estate Officer to demonstrate that their structures are authorised, protected, or affected by the MUT project, which could have entitled them to be considered as PAP. Similarly, they also failed to establish that their premises are covered under the scheme formulated by the Respondent–Railway Authorities.

19. Likewise, the Petitioners have failed to show that the Writ Premises are situated within 10 meters of the 6th Railway Line, Mumbai Central–Borivali. On the contrary, in their joint undated representation, they themselves stated that the ‘Writ Premises’ are located beyond 10 meters from the 6th Railway Line, Mumbai Central–Borivali.

20. Thus, it appears that the Petitioners have failed to demonstrate that they are entitled to get the benefits under the Government Resolution dated 12th December 2000, or that they qualify as per the PAP eligibility criteria given under the R & R policy. In view of this, we have no hesitation in holding that the Petitioners are not entitled to any relief under the said Government Resolution.

21. The second limb of the argument was that the Estate Officer failed to consider the mandate in Utran Se Besthan Railway Jhopadpatti Vikas Mandal (supra) and erred in directing the Petitioners to vacate the premises. The learned Advocate took us through the said judgment and, on the basis of the mandate, urged that the impugned order be set aside.

22. In response, the learned Advocate for the Corporation submitted that the Corporation acted in accordance with the provisions of the Act of 1971 by following due process of law, i.e. issued a Show Cause Notice and subsequently passed the order. As such, the principles laid down in Utran Se Besthan Railway Jhopadpatti Vikas Mandal (supra) do not apply to the present case and do not support the Petitioners’ contention.

23. We have perused the said judgment cited. It appears that in the cited case, the Authorities, without following the due procedure of law, directed the petitioners to vacate the ‘Writ Premises’ therein. Therefore, the Hon’ble Supreme Court has categorically observed that “there is a special enactment, which enables the Railway Authorities to protect its property, i.e., their statutory and public trust obligation. It was open to the concerned Authority to invoke the provisions of a special enactment, including the Public Premises Act. For that, the Estate Officers should have moved into action in right earnest at the earliest opportunity. Even that option is not being invoked for the reasons best known to the Authorities. Therefore, it was held that the Railways are equally responsible for the said situation and for which reason, it is also equally liable to provide some support to the persons likely to be affected by the removal of their structures”.

24. It is to be noted that the Railway Authorities initially issued Show Cause Notices to the parties under Section 5A (2) of the Act of 1971. After providing an opportunity to be heard, the Authorities passed a detailed order within 15 days of the date of service of the said notice. The said fact itself indicates that the Estate officer has followed the due process of law, as contemplated by the Hon’ble Supreme Court in Utran Se Besthan Railway Jhopadpatti Vikas Mandal (supra). Therefore, in our view, the decision in the aforesaid judgment is hardly of any assistance to the Petitioners. On the contrary, it supports the defence of the Railway Authorities.

25. To summarise, it is evident that the Writ Premises or structures standing on Railway land are unauthorised. Each of these premises/structures is neither covered by any scheme nor affected by any project. Therefore, the Petitioners are not entitled to get benefits under the Government Resolution dated 12th December

2000. Consequently, the Petitioners are not eligible for PAP benefits under the R&R policy. Having considered the same, it is evident that the Petitioners failed to make out a case for invoking the Writ Jurisdiction. As a result, all these Writ Petitions are dismissed.

26. At the same time, it is pertinent to note that the fact remains that the Railway Authorities do not dispute that the Petitioners are occupying the Writ Premises/structures as mentioned in the above table. As well as the Railway Authorities, do not dispute the identity of the Petitioners or the measurements carried out by them regarding the Writ Premises/structures. Therefore, we have no hesitation in holding that the Railways are equally responsible for the above situation and, for this reason, are liable to provide some support to the persons likely to be affected by the removal of their structures.

27. Hence, keeping in mind the dictum of the Hon’ble Supreme Court in Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, [(1997) 11 SCC 121] and the guidelines laid down therein, we are issuing the following directions: (a) The Petitioners shall vacate the Writ Premises within 60 days from the date of this order. (b) If the occupants fail to vacate the unauthorised structures/writ Premises, it will be open to the Respondent, i.e., Western Railways, to initiate appropriate action to dispossess them forcibly and to demolish or remove the unauthorised structure (s) by taking assistance of the local police force.

(c) The Superintendent/Commissioner of Police of the concerned area shall ensure that adequate police force is deployed on the site and the surrounding areas for the protection of the Officials/Staff engaged in the demolition of the unauthorised structures referred to in the eviction notices.

(d) Needless to state, before the commencement of the process of eviction and removal of the structures, the Respondent No. 5- Collector must ensure that the necessary details about the names and numbers of the persons occupying the concerned structures, including their identity and profile, should be duly recorded, which record should be preserved by the Collector for considering the eligibility of those persons for being provided suitable residential accommodation after being evicted owing to proposed demolition action. (e) In the event that the State Government or the Railways has any rehabilitation scheme, the affected persons may apply to be rehabilitated under the said scheme, if eligible and subject to verification of eligibility and complying with all other terms and conditions of the prevalent scheme. The concerned Authority may provide them with suitable residential accommodation in lieu of rehabilitation owing to the demolition of their structure, only if any of these Petitioners are found to be eligible. (f) In the event of rehabilitation, if any, the persons affected by demolition action by the Authorities cannot and shall not insist on the allotment of alternative residential accommodation at the same place from which they have been evicted. The eligible persons may be allotted accommodation wherever available in the same or even in any neighbouring districts. (g) In addition, since the Railways have the power to initiate civil/criminal action against the unauthorised occupants on the Railway property, in future, they must resort to those proceedings against the concerned persons immediately after it is brought to the notice of the concerned Official of the Railways. (h) We make it clear that this Court has not expressed any view about the grant of benefits of any scheme to the Petitioners and it is left open to the Authorities concerned, to take an independent decision if any of them is eligible under any scheme.

28. Rule is discharged. No order as to cost. (ABHAY J. MANTRI, J.) (RAVINDRA V. GHUGE, J.)