HIGH COURT OF CHHATTISGARH BILASPUR
Judgment Reserved on 19.09.2019
Judgment Delivered on 02.12.2019
Writ Appeal No. 103 of 2016
(Arising out of order dated 28.01.2016 passed in
Writ Petition (C)
No.810 of 2015 by the learned Single Judge)
Bhanwar Sen Mogare S/o Late Puran Lal Mogare,
Category- Scheduled Caste, R/o Bapu Up- Nagar, Railway
Area, Ward No. 64, Bilaspur, Police Station Torwa, Tahsil
Bilaspur District Bilsapur, Chhattisgarh.
and 66 others ---- Appellants
Versus
1. Union of India Through Secretary Department of Railway
New Delhi (India) (Wrongly Mentioned As Naya Raipur
Chhattisgarh In The Impugned Order)
2. General Manager, South Eastern Central Railway Bilaspur-
Division Bilaspur, Chhattisgarh.
3. Senior Sub-Divisional Engineer (Works) South Eastern
Central Railway Bilaspur- Division Distt- Bilaspur
Chhattisgarh.
4. Senior Sub-Divisional Engineer (Awash) South Eastern
Central Railway Bilaspur- Division Distt- Bilaspur,
Chhattisgarh.
5. Commissioner, Municipal Corporation Bilaspur Distt-
Bilaspur, Chhattisgarh.
5
6. Station House Officer, Police Station- Torwa Distt- Bilaspur,
Chhattisgarh.
7. Divisional Railway Manager South Eastern Central Railway
Bilaspur- Division Distt- Bilaspur, Chhattisgarh.
8. State of Chhattisgarh, Through The Secretary, Department
of Urban Administration, Mantralaya, Naya Raipur,
Chhattisgarh.
9. Collector, District Bilaspur, Chhattisgarh.
---- Respondents
Writ Appeal No. 328 of 2016
(Arising out of order dated 28.01.2016 passed in
Writ Petition (C) No.1893 of 2015 by the learned Single Judge)
1. Pushpa Mahettar W/o Sudesh, Aged About 30 Years Category Scheduled Caste
and 33 others.
---- Appellants
Versus
1. Union of India Through Secretary Department of Railway New Delhi (India) (Wrongly Mentioned As Naya Raipur Chhattisgarh In The Impugned Order).
2. General Manager, South Eastern Central Railway Bilaspur Division Bilaspur, Chhattisgarh.
3. Senior Sub Divisional Engineer (Works) South Eastern Central Railway Bilaspur Division Distt. Bilaspur, Chhattisgarh.
4. Senior Sub Divisional Engineer (Awash) South Eastern Central Railway Bilaspur Division Distt. Bilaspur, Chhattisgarh.
5. Commissioner, Municipal Corporation Bilaspur Distt.Bilaspur, Chhattisgarh.
6. Station House Officer, Police Station Torwa Distt. Bilaspur, Chhattisgarh.
7. Divisional Railway Manager South Eastern Central Railway Bilaspur Division Distt. Bilaspur, Chhattisgarh.
8. State of Chhattisgarh, Through The Secretary, Department of Urban Administration, Mantralaya Naya Raipur, Chhattisgarh.
9. Collector, District Bilaspur Chhattisgarh.
---- Respondents
Writ Appeal No. 566 of 2016
(Arising out of order dated 28.01.2016 passed in
Writ Petition (C) No.1893 of 2015 by the learned Single Judge)
1. Sarla Beriya W/o Shri Sanoj Beriya, Aged About 27 Years Category Scheduled Caste
and 152 others
---- Appellants
Versus
1. Union of India Through Secretary Department of Railway New Delhi (India) (Wrongly Mentioned As Naya Raipur Chhattisgarh In The Impugned Order)
and 123 others
---- Respondents
For Appellants : Shri Kishore Narayan, Advocate
For Respondent/State : Shri Vivek Ranjan Tiwari, Additional Advocate General
For Respondent/UOI : Shri B. Gopa Kumar, Assistant Solicitor General
For Respondent/Railways : Shri Abhishek Sinha, Standing Counsel
For Respondent/Corporation: Shri H.B. Agrawal, Senior Advocate in WA No.103/2016 with Shri Pankaj Agrawal, Advocate
For Respondent/Corporation: Shri A.S. Kachhawaha, Advocate with in WA Nos.328/2016
Ms. Pushpa Dwivedi, Advocate
Hon'ble Shri P. R. Ramachandra Menon, Chief Justice Hon'ble Shri Parth Prateem Sahu, Judge C A V Judgment Per Parth Prateem Sahu, Judge
1. Since all the three writ appeals are arising out of common order dated 28.01.2016 passed by learned Single Judge in Writ Petition (C) Nos.810 of 2015 and 1893 of 2015, they were heard together and decided by this common judgment.
2. Brief facts for disposal of these appeals are that the Appellants have raised construction on land situated at Bapu Nagar Area, Ward No.64, Bilaspur, which belongs to Indian Railways. The Appellants have constructed accommodations over the encroached lands. The Respondent-Railways had issued notice on different dates for removing unauthorized constructions over the Railway property. The issuance of notice for removing unauthorized constructions over the Railway property made the Petitioners to approach the High Court by way of filing the writ petitions under Article 226 of the Constitution of India with following reliefs:-
"10.(1) Issue a writ of prohibition or any other appropriate writ directing the respondents to not to demolish the houses of the petitioner and not to evict the petitioners from their land in possession.
10.(2) Pass an order directing the respondents to regularize the holding of land possession by way of grant of patta under different scheme of the government.
10.(3) Pass a writ of mandamus directing the respondent to provide the petitioners a just and proper rehabilitation to a suitable place of residence.
10.(4) Pass any other order as the Hon'ble Court in view of special facts and circumstances mentioned above in the interest of justice."
3. The Respondent-Railways after receiving notice of writ petitions submitted their reply. The writ Court after hearing counsel for the respective parties disposed off the writ petitions mentioning therein that Petitioners who are encroachers have no vested right over the encroached lands or to have a claim of regularization of encroachment. But looking to the facts and circumstances of the case as well as several schemes of Government for providing residential accommodation to poor and downtrodden homeless persons in urban and rural areas, issued following directions :
The Railways are entitled to proceed to evict the Petitioners by removing encroachment and/or demolishing illegal construction made by the Petitioners on Government land/Railway land.
The Petitioners may apply for allotment of the houses under different Government schemes like 'Atal Awas Yogna' etc. and on such application being made, the Government may deal with the same in accordance with its own policy, as and when such accommodation is available. However, pendency of the Petitioners' application for allotment under any Government scheme would not come in way of Railways in evicting the Petitioners."
4. Dissatisfied with the disposal of writ petitions and observations made therein by the learned Single Judge, Appellants have approached this Court by way of filing these writ appeals.
5. Learned counsel for the Appellants submitted that Appellants are very poor persons and most of them belong to members of reserved class community. He further submitted that most of them were engaged as Safai Karmacharis or doing labour works and residing there for last more than 60 years after construction of small accommodation over the lands, which is said to be a Government land owned by the Railways.
He further submitted that Railway being one wing of Central Government, therefore, the Central Government and as also the State under whose territorial jurisdiction Appellants are residing, have an obligation to provide house and shelters to homeless citizens, like petitioners before evicting them holding the construction to be unauthorized over encroached Government land. He further submitted that at present, there is a scheme framed by the Central Government as 'Pradhan Mantri Awas Yojana', which is to be implemented by the State Government through local bodies. He further submitted that in pursuance to the order passed by the learned Single Judge, Appellants have moved applications before the Municipal Corporation, Bilaspur for rehabilitation, but till date, none of the Appellants have been provided any accommodation by way of rehabilitation under the scheme floated by the Central Government on in any of the scheme of the State. He also submitted that right of housing is a fundamental right, therefore, without there being a rehabilitation, no eviction from the Government land can be ordered. He lastly submitted that learned Single Judge has not taken into consideration this very aspect, therefore, the order passed by the learned Single Judge is required to be interdicted.
6. On the other hand, learned standing counsel for the Respondent-Railways submitted that most of the Appellants are in age category of about 40 years, therefore, the submission made by learned counsel for the Appellants that they are residing over the encroached land for last more than 60 years, is not sustainable. He further submitted that encroachers do not have any legal enforceable right to occupy over encroached Government land and to get it regularized. He also submitted that there is very limited land available with Railways and these lands are required for extension of railway tracks, construction of structure for smooth running of Railways. Railway is neither having any land in excess nor having the funds for the purpose of rehabilitation of encroachers/Appellants.
7. Learned counsel for the Respondent-Corporation submitted that though several housing schemes were floated, but most of housing schemes closed by efflux of time and at present, the scheme floated by the Central Government in the name of 'Pradhan Mantri Awas Yojana' is only running. He further submitted that Municipal Corporation has earlier prepared a list of landless/homeless persons in urban areas, who have encroached the lands of State Government as well as lands belonging to the Municipal Corporation and many of them were have allotted accommodations constructed under the schemes to eligible persons entitled for the same as per fulfillment of parameters for getting the benefit of housing schemes. He also submitted that at present, Municipal Corporation is having shortage of funds and the persons who are above the Appellants in the list prepared by Municipal Corporation are waiting in the list and they will be allotted accommodations under the housing schemes as per their seniority in the list.
8. Learned counsel for the Respondent/Union of India submitted that there is no policy of rehabilitation as such framed by the Railways, but the housing scheme floated by the Government of India and it is to be implemented by State or its bodies.
9. Learned counsel for the Respondent/State submitted that as per directions of Hon'ble Court, State had already submitted their alternative affidavit, which is placed on record. He further submitted that rehabilitation can be done only in accordance with the list prepared by the Municipal Corporation. He also submitted that if they fulfill the criteria of being homeless persons, comes within the zone of consideration to be allotted residential accommodation under the 'house for all' scheme in the name and style of 'Pradhan Mantri Awas Yojana' certainly they will be allotted accommodation but in accordance with the serial number and seniority in the list.
10. We have heard learned counsel appearing for the respective parties and perused the records carefully.
11. The Appellants have filed copy of notice of eviction issued by the Railways for removing their unauthorized constructions over the Railway property, from which, it is clear that Appellants have encroached over the Railway property and have also raised construction over it. It is not their claim that they are owner of the said property, but in fact, their case/claim is only that they are residing over the said land situated at Bapu Nagar Area, Ward No.64, Bilaspur for last more than 60 years.
12. The encroachers undoubtedly over Government land or any other land do not have any vested right to maintain their possession over the encroached Government land except to be considered for rehabilitation under the scheme if they fulfill the parameters prescribed under any scheme.
13. The learned Single Judge while disposing off the writ petitions has taken into consideration the judgments passed by the Hon'ble Supreme Court in the matters of Jagpal Singh and Others v. State of Punjab and Others1 and Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan and Others2, wherein Hon'ble Supreme Court has held that even if the Appellants therein have built houses on the land in question, 1 AIR 2011 SC 1123 2 (1997) 11 SCC 121 they must be ordered to remove their construction and possession. The Hon'ble Supreme Court has also observed that illegalities cannot be regularized, common interest of public at large cannot be made to suffer merely because the unauthorized occupation/construction has subsisted for many years. Public property needs to be preserved and protected; no one has a right to make use of public property for their private purpose without requisite authorization from the competent authority, and illegal/unauthorized constructions have been held to be permanent obstruction to free passage of traffic, safety and security.
14. During the pendency of these appeals, this Court passed several orders directing Municipal Corporation to submit particulars about the schemes and number of houses constructed and allotted. The relevant portion of one of the order dated 01.08.2016 is extracted below :
"We direct the Commissioner of the Municipal Corporation, Bilaspur to file a fresh affidavit that how many houses are lying vacant under this scheme or any other similar scheme and how many persons have been rehabilitated under this scheme or any other scheme. We also direct the Secretary, Urban Administration to convene a meeting with the Commissioner of the Municipal Corporation, Bilaspur and the Divisional Railway Manager, SECR to discuss this aspect of the matter as to how the Appellants have to be rehabilitated. Minutes of the said meeting be furnished to this Court within three months from today."
15. On 17.11.2016, looking to the parameters of entitlement for rehabilitation under the housing schemes, this Court has recorded thus :
"On 07.08.2016, we had issued the following direction :"While framing the scheme, the authorities may also consider that if some of the Appellants are employed and earning sufficient amount, then they can be excluded from his rehabilitation scheme."
16. In compliance of various orders passed by this Court, Respondent/State submitted their affidavit on 29.04.2016, in which, they have pleaded in paragraph-6 as under :
"6. That in compliance of the directions of the Hon'ble Court the petitioners had submitted their application before the Municipal Corporation, Bilaspur for allotment of the houses under different Government schemes like Rajiv Sahari Nirdhan Yojna, Atal Awash Yojna, Valmiki Ambedkar Awash Yojna (VAMBAY) and Integrated Housing and Slum Development Pragramme (IHSDP) etc. and after receiving the applications so received they are entered in the register by the Corporation and thereafter an enquiry is pending in respect of the entitlement of applicants and if they found fit for allotment of the accommodation their cases will be forwarded to the House Allotment Committee, of which the Collector is the Chairman and after approval of the Committee, on availability of the accommodation the same will be alloted to the respective person. Copy of the chart showing the status of the accommodation allotted and under construction in Rajiv Sahari Nirdhan Yojna, Atal Awash Yojna, Valmiki Ambedkar Awash Yojna (VAMBAY) and Integrated Housing and Slum Development Programme (ISHDP) are collectively annexed herewith as Annexure- R-2."
17. Another affidavit has been sworn by Principal Secretary, Department of Urban Administration and Development, Mahanadi Bhawan, Mantralaya, Naya Raipur, Chhattisgarh, in which, he has mentioned that currently, only one scheme of Government of India is running under the name of 'Pradhan Mantri Awas Yojana' and pleaded as under :
"7. That the earlier schemes had excluded slums located on Railway lands from their purview, but the current scheme, namely PMAY, does not exclude any slum located anywhere in the urban area.8. That the broad object of PMAY is "Housing for All" and as such it is the policy of the Government not to turn away any person who claims to be homeless and seeks a home; hence applications are received from every applicant as has been received from the petitioners/appellants, and taken up for verification of credentials and eligibility before being put into the process of allotment as and when housing stocks become available.9. that the purpose of the other affidavit filed by Shri P.K. Panchayati, Executive Engineer, Bilaspur Municipal Corporation was to indicate that there are already applicants in queue waiting for allotment of a house from the dwelling units under construction and that there is no ready stock of houses which can be alloted off the shelf to the petitioners/appellants, displaced from lands of the Indian Railways;"
18. The aforementioned affidavits submitted by the Government Officials would clearly reflect that the slums located on Railways land are covered under 'Pradhan Mantri Awas Yojana' and further the applications submitted by the Appellants are under process of verification of their credentials and eligibility before entering their names in the list of eligible persons, entitled for benefit of housing scheme to be allotted accommodations as and when housing stocks become available. As of now, the Appellants have already moved applications for their rehabilitation before the competent authority i.e. Municipal Corporation, Bilaspur and their eligibility, entitlement and credentials to come under the zone of consideration to avail benefit of the housing scheme has been said to be under process.
19. In view of the law laid down by the Hon'ble Supreme Court with regard to removing encroachments over the Government lands in the aforementioned cases, we do not find any illegality or infirmity in the order passed by learned Single Judge in refusing to grant relief of regularization of encroachment and further not issuing prohibitory writ against the Respondents against demolition of unauthorized constructions (houses) of the Appellants.
20. In the facts and circumstances of the case, particularly, looking to the claim of Appellants that they are residing since long over the lands in question, Respondents No. 5 and 8 are directed to complete the procedure of verification of the credentials of the Appellants at the earliest and to prepare a list of eligible persons among the Appellants to be entitled for benefit under the housing scheme and to place them in the entire list of eligible persons prepared by Municipal Corporation as encroacher on Government lands including the lands of Railways and to allot the houses as and when available. We also direct that the Respondents No. 5 and 8 will not make any discrimination amongst encroachers of State Government land, land of Municipal Corporation or the land of Railways, but will allot the available accommodation or accommodation to be constructed strictly in accordance with the seniority in the list.
21. Looking to the upcoming season of winter and to minimize the hardship, we also direct that the Appellants may not be dispossessed till February, 2020.
22. In view of above observations/directions, these writ appeals are disposed off.
Sd/- Sd/-
(P. R. Ramachandra Menon) (Parth Prateem Sahu)
Chief Justice Judge
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