ASN 1 PIL-19.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION PUBLIC INTEREST LITIGATION NO.19 OF 2011 Terence D’souza and others. ..Petitioners. Vs. The Mumbai Rail Vikas Corporation and ors. ..Respondents. Mr. Firdosh Pooniwala with Mr. Y. R. Shah for the petitioners. Mr. Suresh Kumar for the Respondent Nos. 1 and 2. Mrs. Geeta Shastri, A.G.P. for Respondent-State. Mr.Sandesh Deshpande for Respondent Nos. 8 and 9. CORAM : MOHIT S. SHAH, C. J. AND SMT. ROSHAN DALVI, J. DATE : 14 October 2011 ORAL ORDER (Per Chief Justice): Rule. 2 By consent of the parties, rule made returnable forthwith. 3 In this Public Interest Litigation, the petitioners have prayed for directions to the respondents-railways to put a proper and feasible foot over bridge (FOB) which can be used by the members of the public passing to and fro east and west sides of the Vikhroli Station with a width of landing on both sides of about 3 to 6 meters and landing on Municipal roads on both the sides. ASN 2 PIL-19.sxw The controversy arises in the context of the following factual background. 4 The State Government issued notification dated 18 August 1962 and 6 September 1962 under Section 4 of the Land Acquisition Act and thereafter Notification dated 12 September 1965 under Section 6 of the Land Acquisition Act for acquiring the lands bearing Survey No.27- A/5 (Part) admeasuring 283.59 sq. yards and Survey No.29/2/Part admeasuring 726 sq. yards aggregating to 1009.59 sq. yards. The awards under the Land Acquisition Act were made on 31 March 1967 and compensation was paid to the original owners i. e. M/s Godrej and Boyce Manufacturing Co. Ltd. (hereinafter referred to as “Godrej Company”) and certain occupants mentioned in the award. 5 It is contended by the petitioners that the railways have constructed the FOB at Vikhroli Railway Station with a width of only 2 meters instead of 6 meters. Since that is grossly insufficient for pedestrians traffic, which includes school children, several deaths have occasioned when the pedestrians have been forced to cross the railway tracks instead of using the (FOB) and are forced to land on the railway platform even when they merely want to cross to the other side of the tracks. Mr. Suresh Kumar, learned counsel for the railways contends that the FOB lands on Platform No.1 and it could not be constructed outside as the land adjacent thereto is encroached upon by construction of one Vinayak Arcade and 45 shops adjoining it unauthorizedly and illegally put up by the respondents 8 and 9 on the land acquired for the ASN 3 PIL-19.sxw railways which the railways have not been able to utilize for the public despite acquisition for FOB. 6 In response to the notice issued by this court, affidavit in reply has been filed by respondent No.8 who is also the husband of respondent No.9. Respondent Nos. 8 ad 9 have placed on record no document of title. All that they have contended is that land admeasuring 939.3 sq. meters of survey No.27-A/5 Part in City Survey No.62/40)(P) situated at Village Hariyali, Taluka Kurla is in their possession since long and that when possession was disturbed, respondent no.8 filed Suit No. 7668 of 1992 in City Civil Court for declaration and injunction against M/s. Godrej and Boyce Manufacturing Co. Ltd. The said suit was compromised between the parties and the consent terms dated 15 December 1992 were filed before the City Civil Court which are filed at Exhibit-I. It is further stated that on the basis of the said consent terms the name of respondent No.8 was mutated in 7/12 extract and Form No. 8A issued by the Revenue Authorities upon the NOC given to them by M/s.Godrej and Boyce Co. Ltd. On the basis thereof, City Survey Officer, Ghatkopar added the name of respondent Nos. 8 and 9 on the property card showing them as holder/occupier of the said plot. It is also contended that the family of respondent No.8 is using property prior to 1960 and as the structures were old and dilapidated and urgent repairs were required, they applied to the Municipal Corporation for permission to carry out repairs to their structure. For that purpose they gave an undertaking. It is further contended that the said respondents have also filed return under Section 6 of the Urban Land Ceiling Act ASN 4 PIL-19.sxw before the Competent Authority and the order has been passed by the competent authority. Respondent Nos. 8 and 9 have also relied upon the letters given by Godrej Company dated 26 October 1998 mentioning that various taxes in regard to the land in question were payable by them. 7 On perusal of the affidavit filed by respondent No.8, it is clear that the respondent Nos. 8 and 9 have not been able to show any document of title. The declaration under Section 6 of the ULC Act was filed by respondent Nos.8 and 9 only in the year 2005. Hence, the same cannot disclose their structures or their possession at the time of acquisition of the land for the railways in the year 1967. 8 As regards the permission obtained by respondent No.8 and 9 from the Municipal Corporation for carrying out repairs, it is necessary to note that consent of the railways had not been obtained by them and not been insisted upon by the MMC to grant the repair permission as required by law. However, in the permission granted by Municipal Corporation a specific condition was imposed requiring respondent No. 8 to give an undertaking in the following terms:- “That you shall given an undertaking to surrender the land along with the structure for future widening, if any, of the existing road or for railway purpose and also give peaceful possession of the structure if affected by future planning to eliminate the level crossing of Vikhroli railway station as per the terms and conditions of the relevant authority.” ASN 5 PIL-19.sxw 9 In terms of the above condition, respondent No.8 also gave undertaking dated 24 January 2008 to surrender the land for future widening of the road for Vikhroli railway station. The manner in which the undertaking was worded indicates that the respondent Nos. 8 and 9 had no right to remain in possession of the land as the respondent Nos. 8 and 9 did not show any title to the land in question which was acquired for railways as far as back in 1967. 10 It is necessary to note that in the order of the Competent Authority dated 31 October 2005 under Urban Land Ceiling Act it is specifically mentioned that the area declared by the Authority being CTS No.62/40/Part Survey No.27-A/5/1/Part admeasuring 935.3sq.mtrs. was reserved for public purpose of railways and it was situated in local commercial zone. Thus, it is clear that the land in question claimed by respondents 8 and 9 was reserved for railways in 1967. Respondent No. 8 obtained the declaration of land as vacant land from the U.L.C. Authorities in the year only in 2005. Having obtained the said order on the basis that the land in question was reserved for railways, respondents No.8 and 9 cannot be now permitted to contend that any structure existed on the land in question since prior to 1967. Respondents 8 and 9 obtained permission to carry out the repairs only in 2008 and have put up the construction of the mall by name Vinayak Arcade and shops adjoining the mall thereafter. 11 From the documents on record produced by the parties we have noted that the land in question including Survey No.27-A/5/Part has ASN 6 PIL-19.sxw been acquired for the railways since 1967. Compensation was paid to Godrej Company as the owners of the land and to several named occupants who were then occupying portions of the acquired land. We have been shown copies of possession receipts obtained from the occupants in the occupation proceedings. Respondents 8 and 9 were not shown as occupants in the Award dated 31 March 1967 and have not executed possession receipts. They have not been paid compensation. In any event possession was taken by the railways of the entire acquired land in 1967. The contention of Respondents 8 and 9 that they have been in possession of 45 structures in question since 1960 is specifically negated by the Award. The reference to their occupation in any structure on the acquired land from 1960 in the ULC letter for grant of N.A. Permission or in the M.M.C. permission for repair is incorrect and unsubstantiated by documentary evidence. In the census of 1976, 4 separate structures were censused in the names of respondents 8 and 9. These were unauthorized construction. No sanctioned plans for such construction is produced by respondent Nos. 8 and 9. The suit of respondent Nos. 8 and 9 in the Bombay City Civil Court was for protection of their possession of the structures occupied by them. The consent decree passed in terms of the consent terms merely shows that Godrej Company would not interfere with the possession of respondents 8 and 9 below the structures occupied by them. The consent decree does not confer title on respondents Nos. 8 and 9. Godrej Company itself did not have any title to any land under Survey Nos. 27-A/5 or 29(2) which were already acquired and for which compensation was paid to the Godrej Company as well as the then occupants. The 7/12 extracts relied ASN 7 PIL-19.sxw upon by respondent Nos. 8 and 9 are only for the year 2011. The Property Register Card shows the names of Godrej Company and one R. Shetty in 1971. The names of respondents 8 and 9 are shown only from the year 1994 for 935.3 sq. meters. The letter of Godrej Company to respondents 8 and 9 dated 26 October 1998 is for payment of taxes for their structures. Respondents 8 and 9 are shown to have used their structures for the illegal purpose of gambling and hence have been prosecuted in 2004 in several criminal cases in that regard. The order of ULC Authority has been passed for their structures in 2005. None of those documents shows any precise structure of any specific description. Respondents 8 and 9 have shown taxes paid to the Collector only on 14 March 2006 for certain 8 gunthas of land. It is not shown for which land the taxes are paid. The land acquired under Survey No.27-A/5/Part is 2 gunthas, 8 annas. Repairs have been allowed to the 4 structures of respondents 8 and 9 censused in 1976 by letter of the Executive Engineer of the M.M.C. dated 4 December 2007 without the consent of the railways as required by law. Two separate repair permissions are granted to respondents 8 and 9, the husband and wife, on 1 January 2008 who have separately given the aforesaid undertakings on 24 January 2008. 12 The structure under dispute is completely different from the structures shown in the above documents. The Inspection Extract given by the M.M.C. shows a completely different structure of different dimensions constructed by respondent Nos. 8 and 9. The earlier 4 structures for which separate repair permissions were given to ASN 8 PIL-19.sxw respondent Nos. 8 and 9 is now one brand new construction of a mall with several shops adjoining platform No.1 and abutting the road. Hence respondent Nos. 8 and 9 have put up a wholly unauthorized new construction in the guise of repair permission after 1 January 2008. The reply of the M.M.C. dated 31 January 2011 to the R.T.I. query of the petitioner shows that there is no proposed number for any construction on Survey No.27-A/5/Part. Hence the construction put up by respondent Nos. 8 and 9 is not sanctioned by the M.M.C. Such construction, once seen by the court upon hearing respondents 8 and 9, cannot be allowed to remain. Respondents 8 and 9 shall have to act upon the undertakings given by them on 24 June 2008. 13 In view of the above discussion, we direct the respondent Nos. 1 to 7 to proceed on the basis that the land acquired for the railways as per acquisition made in 1967 being land admeasuring 953.3 sq. meters belongs to the railways and that the respondent Nos. 8 and 9 have no right to put up any construction or to make use of any portion of the land acquired or to remain in possession thereof. Respondent Nos. 1 to 7 shall, therefore, remove the construction put up on the land bearing Survey No.27-A/5/Part which was acquired for the railways in 1967 as indicated above. The Commissioner of Police, Bombay as well as Commissioner of Railways shall render all necessary assistance to respondent Nos. 1 to 7 for demolishing unauthorized construction. It is also declared that the permission for repairs granted by the Municipal Corporation in the year 2008 shall not be treated as regularizing unauthorized construction and that the undertaking given by respondents ASN 9 PIL-19.sxw 8 and 9 shall be invoked by the MMC as well as the railway authority. Respondents 8 and 9 shall act upon their undertakings by 21st November, 2011. 14 After the unauthorized construction is demolished on the above land and the land is made available to the railways, the railway authorities shall take necessary steps for providing proper and adequate footover bridge of minimum 6 meters in width on the acquired land for the purpose of enabling pedestrians as well as passengers to cross over the railway track without landing on the platform. The railway shall also provide necessary ramps for physically handicapped persons of adequate width. This shall be done within six months from today. 15 Petition is accordingly allowed in the aforesaid terms. CHIEF JUSTICE ( SMT. ROSHAN DALVI, J. )