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2009 Supreme(Guj) 17
2009 (2) GCD 1302 (Guj) (DB)
Hon’ble Mr. Justice Ravi R. Tripathi &
Hon’ble Mr. Justice Rajesh H. Shukla
Jawaharnagar Jhoopda Samittee Mandal (Old Railwayline)
Versus
Union of India and Others
Special Civil Application No. 8750 of 2006—Decided on 22/01/2009
Appearance :
Mrs. S.N. Pahwa, for M/s. Thakkar Assoc., for the Petitioner.
Mr. R.M. Vin, for the Respondents.
Point in Issue :
Whether respondents are entitled to evict petitioners from the railway land?
Headnote:Head Note :
Constitution of India, 1950 — Article 226 — Eviction — Encroachment on railway land — Claim for protection — Ground of equal treatment — Scope — Finding as to — Petitioners contended that railway line on which petitioners huts are situated, there are many encroachments including that of Vaibhav Flats and Siddhi Vinayak Flats etc. — Respondents have sold/regularised the railway land to many cooperative housing societies — The respondents in their affidavits have not denied the facts of encroachments alleged by petitioners on railway land and on the contrary admitted that occupation on said land is irregular and illegal — Court found that petitioners have not prayed that else’s encroachment is regularised, therefore, encroachment of petitioners may also be regularised — No such negative equality can be claimed under the Article 14 of Constitution — In fact petitioner’s prayer is for equal treatment more particularly in the matter of roof on the head of the hutment dwellers — Court held that in the present case if powers under Article 226 of Constitution are not exercised a massage will go to the society that if you have money power you can procure an illegal undue and immoral advantage from an individual officer — If the protection as prayed for is not granted by restraining respondent authorities from singling out petitioners the hutment dweller in the matter of eviction from land in question the Court will be failing in it’s duty — Court however extending the protection to petitioners observed that in the event the railway is able to remove all encroachments from the land in question respondents will be free to take similar and simultaneous actions against present petitioners also.
Held :
This Court is conscious of the fact that negative equality cannot be claimed and Article 14 cannot be applied in reverse, but then what is prayed for in this petition is not that, as somebody else’s encroachment is regularized, the encroachment of the petitioner may also be regularized. In fact, the petition is filed praying an equal treatment, more particularly in the matter of ‘roof on the head’ of the hutment dwellers. In the present case, if powers under Article 226 of the Constitution are not exercised, a massage will go to the society that if you have money power, you can procure an illegal, undue and immoral favour from an individual officer. But when it comes to get shelter/protection from the Court, principle of non-applicability or Article 14 in reverse will be pleaded and you will be pushed out of the Court throwing you at the mercy of the officers who hear and understand only one language of monitory gains. [Para 8]
In the considered opinion of this Court, the Court will be failing in its duty if the protection as prayed for is not granted, viz. the respondent authorities are restrained from singling out the hutment dwellers in the matter of eviction from the railway land. It goes without saying that in the event the railway is able to get removed all the encroachments, on the land in question, the respondent railway authorities will be free to take similar and simultaneous actions against the present petitioners also. But otherwise, the respondent authorities are restrained from enforcing the impugned notice against the hutment dwellers - present petitioners. They are restrained from taking possession of the land on which petitioners are existing for last many decades. [Para 9]
Law Laid Down :
Negative equality can not be claimed under Article 14 of Constitution.
Ravi R. Tripathi, J.—The present petition is filed by committee of residents of Jawaharnagar Jhoopda Samittee Mandal who are residing in temporary hutments /structures since 1976 along with their family members. The present petition is filed on behalf of about 411 members /residents. Annexure-A is copy of the list of 411 members, which is later on amended to be 371. As nothing turns on that, the Court is not going into the niceties of the same as to whether they are 371 or 411. What is important for the consideration of the Court is Annexure-F, a sketch produced by the petitioners. This Annexure-F shows the actual location of the petitioners vis-a-vis other establishments –Co-operative Housing Societies, etc. on the Railway land. The learned Advocate for the petitioners did point out that the sketch is not in scale.
1.1. The learned Advocate for the petitioners apprises the Court that the alignment of the various societies situated in the railway land is correctly depicted in this sketch. The actual position at the site, meaning thereby the distance of Dhanlaxmi Apartment from the road which is shown in the upper portion in the sketch is the same as that of the hutments. Similarly, the alignment of Dhanlaxmi Row House, Siddhi Vinayak Flats and Vaibhav Flats is also the same.
1.2. Besides that, behind these Dhanlaxmi Apartment, Dhanlaxmi Row House, hutment dwellers, Siddhi Vinayak Flats, Vaibhav Flats, there are encroachments by of Bhavna Society, (Ranip), Dhanlaxmi Society, (Ranip), Vishvakarma Society, (Ranip), Kameshwar Trust Temple, K.R.Raval School, Saraswati Society, (Ranip), Tarveni School, Swaminarayan Park, Navjyot School, etc.
2. The petitioners approached this Court by filing this petition on 24.04.2006. The matter came up for consideration on 27.04.2006 before a Division Bench consisting of Hon’ble Mr. Justice B.J.Shethna (as he then was) & Hon’ble Mr. Justice R.P. Dholakia. On that day, the Court passed the following order:-
“1. Out of 1500 families staying near the Railway line at Wadaj, 371 petitioners could manage to approach this Court by way of this joint writ petition. Their names shown at Annexure-A. They are apprehending eviction by the Railway Administration without following due process of law. It was submitted by Mrs. Pahwa that after the issuance of notice, without passing any order, the respondents want to evict the petitioners from the land in question which is occupied by them since last 30 years.
2. Having heard the learned Counsel Ms.Pahwa and having perused the averments made in the petition as well as documents annexed to it, we are of the considered opinion that Mrs. Pahwa is able to make out atleast a case for issuance of notice. Hence, notice. Parties are directed to maintain status quo as on today. D.S. permitted.”
2.1. On the subsequent date of hearing, i.e. 29.08.2006, learned Counsel appeared for the respondents and prayed for time to file reply. Three weeks’ time was granted to file reply and the matter was ordered to be listed on 25.09.2006.
2.2. The respondents filed affidavit of one Shri R.K. Meena, Divisional Railway Manager (Works) - Respondent No. 2 herein affirmed on 18.09.2006.
2.3. The petitioners filed affidavit in rejoinder affirmed on 06.12.2006, reply to the contents of the affidavit in reply, wherein it was specifically mentioned in Para-3.3 as under:—
“3.3 . . . . . . . . I say that the respondents have sold /regularized the railway land to many cooperative housing societies. I say that the railway line on which the petitioner’s huts are situated is surplus land and is not to be used by Railway. I say that the railway line shown in the map annexed at Page 41 is situated on survey no.53. I say that it is also on final plot no.20 which is actually a railway line, in extract of 7/12 of revenue record, the occupants are shown as Manav Seva Co-operative Housing Society and on the said line, (sic-land) Vaibhav Flats and Siddhi Vinayak Flats are situated. I say that on final plot n
